Split (2)

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songer_const1	104	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. UNITED STATES of America, Appellant, v. Major J. HARRICK, Eddie Ahwash, Phillip Asseff, Joseph Andrew Sadd, Harry Edgar Whittington, George William McClaski, Henry Austin Drury, Fayes Howard Moses, Appellees. No. 78-5009. United States Court of Appeals, Fourth Circuit. Argued July 19, 1978. Decided Sept. 7, 1978. Robert B. King, U. S. Atty., Charleston, W. Va. (James S. Arnold, Charleston, W. Va., Mary S. Feinberg, Asst. U. S. Attys., Roanoke, Va., on brief), for appellant. James B. McIntyre, Charleston, W. Va., for appellees. Before BUTZNER, RUSSELL and WIDENER, Circuit Judges. BUTZNER, Circuit Judge: The United States takes this interlocutory appeal as authorized by 18 U.S.C. § 3731 from the district court’s pre-trial order suppressing evidence on the ground that the affidavit accompanying the application for a search warrant was insufficient to justify the magistrate’s issuance of the warrant. We reverse. I The defendants were indicted on three counts relating to illegal gambling activities in violation of 18 U.S.C. §§ 371, 1952(a)(3), 1955, and 2. At their trial, the government planned to introduce gambling paraphernalia seized at a pool room during a search by officers of the Charleston, West Virginia, police department under a warrant issued by a judge of the Charleston Municipal Court. Evidence presented at the suppression hearing disclosed that Samuel Elmore, a Charleston police officer, applied for the search warrant. In support of his application, he executed an affidavit on oath before a municipal judge. The affidavit alleged violations of the code of the City of Charleston and specified that “Tip Tickets, Tip Books, Monies, and other Gambling Paraphernalia” were concealed at The Diamond Billiards, the location of which was precisely described. As the basis for its allegations, the affidavit recited: . That an agent working under the supervision of Samuel Elmore, a Charleston City Police Officer on the 4th day of February 1977, did enter the Diamond Billiards, described above and while inside did purchase tip tickets being sold by Robert Legg, contrary to the City Ordinances of the City of Charleston, Kanawha County West Virginia. In addition, Officer Elmore furnished the city magistrate an unsworn statement prepared by the undercover agent mentioned in the affidavit. This agent was also present at the magistrate’s office. After the magistrate received the statement, he administered an oath to the agent as a witness, but before the agent testified, Officer Elmore left the room to speak to someone else. Subsequently, the magistrate issued the warrant. At the suppression hearing, the government, without objection, represented to the court that the magistrate had no independent recollection of the application for the warrant but that he could testify that he always personally examined undercover agents before issuing warrants on the basis of information supplied by them. The government declined to call the agent to testify because it wished to keep his identity secret. Therefore, no evidence was presented at the suppression hearing about the agent’s testimony before the magistrate. Granting the motion to suppress, the district court ruled that the government had failed to show that the magistrate possessed a sufficient basis, obtained under oath or affirmation, for crediting the information offered in support of the issuance of the warrant. The court also ruled that" the affidavit did not contain a sufficient basis for concluding that the seller of the tickets possessed a proprietary interest in the premises to be searched or that others on those premises knew of the sale or were engaged in similar activity. II An affidavit offered to show probable cause for the issuance of a search warrant may be based on hearsay when there is “substantial basis for crediting the hearsay.” Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). This basis can be established by affidavits which disclose to the magistrate the underlying circumstances that (1) caused the informant to conclude that the objects of the search are in the premises to be searched, and (2) caused the affiant to believe that the informant is credible or his information is reliable. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The requirements of Aguilar can be met by corroborating evidence of which the affiant has personal — not hearsay — knowledge or by reasonable inferences that establish a substantial basis for relying on the hearsay evidence furnished by the informant. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Harris, 403 U.S. 573, 580-81, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). The standards formulated by these cases derive from the fourth amendment’s essential requirement that sufficient underlying information be presented to allow a “neutral and detached” magistrate, not the police officer seeking the warrant, to draw the necessary inferences to find probable cause. See Aguilar v. Texas, 378 U.S. at 111, 84 S.Ct. 1509. Aguilar, Spinelli, and Harris dealt with situations where only the police officer, not the informant, appeared before the magistrate. Nevertheless, we believe that their basic principles can be applied to sustain the warrant in this case. Ill There can be no doubt that there was a literal compliance with the fourth amendment’s requirement that evidence offered to show probable cause for the issuance of a search warrant must be supported by “oath or affirmation.” The magistrate administered oaths to Officer Elmore and the undercover agent before the warrant was issued. There can also be no question about the sufficiency of information furnished the magistrate concerning the reasons why the undercover agent believed the objects of the search were in the premises to be searched. Elmore’s affidavit discloses that the basis of the agent’s knowledge was his purchase of gambling tickets in the premises. Here, as in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the affidavit relates the observation of the informant. Personal observations of this nature are sufficient to satisfy Aguilar’s first test because they fully explain the underlying circumstances for believing that the premises contain contraband. See United States v. Harris, 403 U.S. at 581, 91 S.Ct. 2075. The difficulty which primarily concerned the district court was the paucity of information about the agent’s reliability. We believe, however, that the lack of direct evidence of the agent’s testimony before the magistrate does not render the search warrant invalid. Elmore averred that the agent was working under his supervision. This in itself is an indication of credibility. The recitation of this fact in the affidavit establishes that the undercover agent was not a casual tipster — he was selected by the officer to assist in the gambling investigation under his supervision. The record contains nothing that could have caused the magistrate to conclude that the police employed an unreliable undercover agent. When an officer applies for a search warrant based on information supplied by fellow officers, it is unnecessary for him to vouch the reasons he has for believing his informants are reliable. Cf. United States v. Welebir, 498 F.2d 346, 349 n.2 (4th Cir. 1974). In view of the undercover agent’s selection and supervision and of the fact that there is no ground for suspecting his reliability, we believe that the same principle applies here. Moreover, Officer Elmore instructed the undercover agent to meet him at the magistrate’s office so that official could satisfy himself about the truth of the agent’s account of the purchase of gambling tickets which Elmore had related in his affidavit. Elmore’s presentation of the agent to the magistrate for examination under oath is a convincing demonstration of the officer’s confidence in the agent’s reliability. It was also the best possible means of affording the magistrate the opportunity to make a detached assessment of the truth of the information contained in Elmore’s affidavit. Even though the agent’s testimony cannot be reconstructed by the magistrate or Elmore, the fact that the magistrate did not issue the warrant until after he had administered an oath to the undercover agent justifies the inference that he was satisfied with the truth of the agent’s account contained in Elmore’s affidavit. We therefore conclude that the second test required by Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), has been met. IV We also conclude that the warrant was not defective because it lacked allegations linking the seller of the gambling tickets more closely to the premises or implicating others on the premises in the illegal activity. Testing the affidavit in the “commonsense and realistic fashion” repeatedly endorsed by the Supreme Court, we cannot label as unreasonable or constitutionally impermissible the magistrate’s conclusion that these premises were apt to have been more than incidentally connected with the illegal transaction that allegedly took place there. See United States v. Harris, 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). The order of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion. . The district court permitted the officer to testify that he gave the statement to the magistrate, but it excluded the statement because there was no proof that the magistrate read it or that the agent testified as to its authenticity. . The fourth amendment to the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Washington NEAL et al., Appellants, v. SYSTEM BOARD OF ADJUSTMENT (MISSOURI PACIFIC RAILROAD) et al., Appellees. No. 17728. United States Court of Appeals Eighth Circuit. July 21, 1965. Wilson Gray, St. Louis, Mo., for appellants. Robert W. Yost, St. Louis, Mo., for appellee, Missouri Pac. R. Co. Edward J. Hickey, Jr., Washington, D. C., for all appellees other than Missouri Pac. R. Co. M. M. Hennelly and Robert W. Yost, St. Louis, Mo., Edward J. Hickey, Jr., James L. Highsaw, Jr., of Mulholland, Hickey & Lyman, Washington, D. C., Carroll J. Donohue, Stephen W. Skrainka, of Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., were on joint brief for appellees. Before VAN OOSTERHOUT, BLACK-MUN and MEHAFFY, Circuit Judges. BLACKMUN, Circuit Judge. Judge Regan has entered summary judgment for the defendants in this proceeding by which seven Negro plaintiffs, alleging racial discrimination, seek in-junctive relief and damages for claimed violations of the Railway Labor Act, as amended, 45 U.S.C. §§ 151-163. The plaintiffs are employees of the Missouri Pacific Railroad Company in the Saint Louis Terminal. They and other employees are persons for whom the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes is the designated representative, within the definition of § 1 Sixth of the Act, 45 U.S.C. § 151 Sixth. The Brotherhood is an unincorporated association with headquarters at Cincinnati. It and the Missouri Pacific have negotiated a collective bargaining agreement which groups freight warehouse employees into Classes A, B and C, consisting, respectively, of clerks, messengers, and laborers. It also contains seniority provisions. In 1962 the Missouri Pacific began the installation of an electronically controlled conveyor system at the Miller Street freight house in Saint Louis. The System Board of Adjustment (Missouri Pacific Railroad), which is a committee of the Brotherhood formed under the union’s Protective Laws to represent employees of the Missouri Pacific, in November 1962 served on the railroad notice under § 6 of the Act, 45 U.S.C. § 156, of a desire to enter into an agreement defining the rights of employees affected by the installation of the conveyor system. In due course a Supplemental Agreement, dated April 17, 1963, was executed. This provides, “It is agreed that when the Carrier desires to establish positions of ‘Checker-Stowman’ which will result in the abolishment of warehouse laborer positions, notice will be given the General Chairman and conference arranged to work out details regarding promotion of ‘Class C’ employes to the ‘Class A’ roster. “The positions of ‘Checker-Stow-man’, when established, shall be considered ‘Class A’ positions and will be paid the prevailing Check-Clerk rate of pay.” The plaintiffs’ original petition presumed the status of a class action and named as defendants the System Board, two of its officers, the Brotherhood, three officers of it, and the railroad. It alleged, among other things, that: (a) The clerks of Class A and the messengers of Class B were white and the laborers of Class C were Negro, (b) The Brotherhood, through the System Board, maintained two locals, Nos. 280 and 1740, in the bargaining unit. The former was 97% white; the latter was all Negro. The plaintiffs were members of No. 1740. (c) The conveyor system, when complete and operative, would cause the abolition of most of the Class A and Class B positions but would not affect the Class C positions, (d) The System Board, with the advice and consent of the Brotherhood, set up a plan by which the Class A and Class B employees would be reclassified under a new Class A roster of checker-stowmen who would do the work now being done by Class C employees. This would result in the displacement of the plaintiffs and other Class C employees and the loss of seniority rights, (e) The System Board, solely because of race, did nothing to protect the Negro Class C employees. This constituted a violation of the plaintiffs’ rights under the Act. (f) All three classes should be dovetailed on the new Class A roster, (g) The railroad, by agreeing to the plan, was also refusing to recognize the rights of the plaintiffs and other Class C employees. The relief requested included an injunction against placing the agreement of April 1963 into effect, and requiring its appropriate modification, and actual and punitive damages. The following events then took place: 1. In September 1963 the district court quashed Ohio service upon the Brotherhood and two of its officers, and also dismissed the action as to those three defendants and as to the third officer on grounds of improper venue. 2. In November the court entered its order dismissing the case as to the railroad and as to the System Board and its two officers for failure to join indispensable parties and for failure to allege exhaustion of administrative, contractual and union remedies, “unless plaintiffs amend within ten days so as to cure these defects”. In its accompanying memorandum the court upheld its general ju-risdietion “over a claim of hostile discrimination” and concluded that the petition, although not too clear, stated a claim against the railroad. But it also held that the Brotherhood was an indispensable party; that, although the System Board did not have capacity to be sued, its membership and officers might constitute representatives of a class which includes the Brotherhood; that process upon it as a representative might then be notice to the whole class; that some employees who were members of the locals would benefit or be bound by a decree; that those members of No. 280 who might be adversely affected by it were indispensable parties; and that exhaustion of contractual and internal remedies was a prerequisite to equitable relief in federal court. 3. In December the plaintiffs filed their amended petition. This named as additional defendants three other officers of the System Board, the two local Lodges, and eight individuals as officers of the locals. It did not name the Brotherhood as such, although it named the Grand Lodge and the same three national officers. It alleged, among other things, that the several System Boards had the duty to negotiate working conditions and other employment relations; that the individual defendants were made parties individually and as representatives of the “International and Local Lodges”, the System Board, and the entire membership of each of them; that since the suit was instituted the two locals have consolidated; that it was impractical to make the entire membership of the Brotherhood, of the System Board, and of the locals parties to the action; that the individual plaintiffs and defendants were appropriate representatives of all; that there was no administrative remedy available because the National Railroad Adjustment Board did not have jurisdiction and could not determine the rights of the parties; that under the supplemental agreement of April 1963 the new Class A checker-stowmen positions would be filled by former Class A clerks and Class B messengers ahead of all Class C employees, regardless of seniority possessed by the latter; that this was hostile, prejudiced, and discriminatory toward the plaintiffs and other Class C employees similarly situated; that the railroad, when joining in the supplemental agreement, was aware of this discrimination; and that the acts of the Brotherhood, its officers, and the System Board were willful and injurious to the plaintiffs and others similarly situated. 4. Motions by the System Board and two of its officers, by the officers of the locals, and by the railroad for summary judgment were then made and sustained by the court. We thus have a situation where the trial court granted the plaintiffs an opportunity to remedy what it felt were the deficiencies in their petition as to persons and allegations, and where it concluded that those defects were not remedied by the amended petition. A. The availability of internal union and contractual remedies and the necessity of their exhaustion. The plaintiffs’ argument, as we understand it, is that an employees’ representative under the Railway Labor Act is obliged to represent all in the bargaining unit fairly and without discrimination; that the courts have power to protect employees against any such discrimination; and that in racial cases of this kind the usual rule that internal or contractual remedies must first be exhausted has no application. 1. The union and its officers. It is of course long settled that a designated representative under the Railway Labor Act has the duty to represent all employees of a class without discrimination as to race, and that the courts have jurisdiction to protect a minority from a violation of that obligation. Steele v. Louisville & N. R. R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Conley v. Gibson, 355 U.S. 41, 46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haley v. Childers, 314 F.2d 610, 616 (8 Cir. 1963). See Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). This principle of itself, however, does not render the plaintiffs’ amended petition here immune from fatal attack. There is no dispute that plaintiffs are members of the Brotherhood and that remedies within the union are provided. There are carefully delineated grievance procedures in the Protective Laws with appeals allowed ultimately as high as the Grand Executive Council. And Article 5 of the Constitution provides, as plaintiffs concede, that it is the obligation and responsibility, of every member to comply with the Constitution and that no member shall resort to the courts until he “first shall have exhausted all remedies by appeal or otherwise provided herein”. Each plaintiff, by becoming a member of the Brotherhood, necessarily made himself a party to that obligation and established a contractual relationship with the union. Hall v. Morrin, 293 S.W. 435, 439 (Mo.App.1927); Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374, 387 (1940); Junkins v. Local 6313, Communication Workers, 241 Mo.App. 1029, 271 S.W.2d 71, 76 (1954); Farrar v. Messmer, 368 S.W.2d 933, 936 (Mo. App.1963); Greater Kansas City Laborers Dist. Council, etc., v. Builders’ Ass’n., 383 S.W.2d 293, 295 (Mo.App.1964); Local 1104, United Elec. Workers, etc., v. Wagner Elec. Corp., 109 F.Supp. 675, 677 (E.D.Mo.1951). See International Ass’n of Machinists v. Gonzales, 356 U.S. 617, 618, 8 S.Ct. 923, 2 L.Ed.2d 1018 (1958). The existence of these internal remedies in this very Brotherhood has already been judicially recognized. Gainey v. Brotherhood of Railway Clerks, 177 F.Supp. 421, 427, 431 (E.D.Pa.1959), aff’d, 275 F.2d 342 (3 Cir. 1960), cert. denied 363 U.S. 811, 80 S.Ct. 1248, 4 L.Ed.2d 1153; Fagan v. Pennsylvania R. R., 173 F.Supp. 465, 474 (M.D.Pa.1959); Martin v. Kansas City So. Ry., 197 F.Supp. 188, 192-93 (W.D.La.1961); Long Island City Lodge 2147, etc., v. Railway Express Agency, 217 F.Supp. 907, 909 (S.D. N.Y.1963). With these internal remedies so definitely available, resort to them, or an adequate reason for failure so to do, is a prerequisite' to equitable relief against the union or its officers in the federal courts. Tunstall v. Brotherhood of Locomotive Firemen, supra, pp. 213-14 of 323 U.S., 65 S.Ct. 235; Fingar v. Seaboard Air Line R. R., 277 F.2d 698, 700-01 (5 Cir. 1960); Gainey v. Brotherhood of Railway Clerks, supra, 275 F.2d 342, 345 (3 Cir. 1960); Long Island City Lodge 2147, etc., v. Railway Express Agency, supra, 217 F.Supp. 907, 909-10 (S.D.N.Y.1963); Martin v. Kansas City So. Ry., supra, pp. 191-93 of 197 F.Supp. The plaintiffs would draw an exception to this rule for cases of racial discrimination. See our comments in Haley v. Childers, supra, p. 617 of 314 F.2d. But the six cases they cite support no such exception and we are not inclined to create and engraft one on established labor law. Three of the cases cited by the plaintiffs were brought by petitioners who were not then members of the union and thus had no internal union procedures available to them. Steele v. Louisville & N. R. R., supra, pp. 194 and 199 of 323 U.S., 65 S.Ct. 226; Tunstall v. Brotherhood of Locomotive Firemen, supra (see the Fourth Circuit’s opinions at 140 F.2d 35, 36 and 163 F.2d 289, 291); Richardson v. Texas & N. O. R. R., 242 F.2d 230, 231 (5 Cir. 1957). The same is to be said of the fourth case, Brotherhood of R. R. Trainmen v. Howard, 343 U.S. 768, 773, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952), although there the Negro plaintiffs were represented by another union of their own selection. All four of these cases then pivoted on the unavailability of remedy under the Railway Labor Act itself. The posture of the Act in this respect is not, of course, the issue here. See Haley v. Childers, supra, pp. 614-15 of 314 F.2d. One perhaps might argue that certain language in the fifth case, Conley v. Gibson, supra, 355 U.S. 41, 78 S.Ct. 99, may be read in such a way as to give the plaintiffs some comfort but we cannot find in that opinion any clear indication that the plaintiffs, although members of the bargaining unit, were members of the union, or that internal union remedies were available to them, or, if such remedies were available, that they, had not been exhausted. There, again, the emphasis was on the Railway Labor Act and jurisdiction of the Adjustment Board. The sixth case, Robinson v. Nick, supra, 235 Mo.App. 461, 136 S.W.2d 374, 387, seems to us to oppose the plaintiffs’ position, rather than to support it. We therefore adhere to the firmly established rule that remedies within the union, when available, as here, are to be pursued as a prerequisite to relief in the federal courts and we indulge in no exception merely because the discrimination alleged is based on race. The rule was recognized in both Steele, p. 207 of 323 U.S., 65 S.Ct. 226; and Tunstall, pp. 213-14 of 323 U.S., 65 S.Ct. 235, even though each of these cases concerned claimed racial discrimination. 2. The railroad. A like result is forthcoming with respect to the Missouri Pacific. Rule 18 of the collective bargaining agreement between the Brotherhood and the railroad relates to “Discipline and Grievances”. It calls for prompt investigation before dismissal, for representation, and for appeal. It also provides similar treatment for an employee who considers himself “unjustly treated”. This is broad language and obviously applicable to the type of complaint the plaintiffs present. See Harrison v. Pullman Co., 68 F.2d 826 (8 Cir. 1934). The necessity of exhausting these contractual remedies as a condition to relief in the courts is recognized, both under Missouri law, Transcontinental & W. Air, Inc. v. Koppal, 345 U.S. 653, 662, 73 S.Ct. 906, 97 L.Ed. 1325 (1953); Gomillia v. Missouri Pac. R.R., 345 S.W.2d 202, 208-09 (Mo.1961); Reed v. St. Louis S. W. R.R., Mo.App., 95 S.W.2d 887, 889 (Mo.App.1936), and under federal law, Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-59, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Tunstall v. Brotherhood of Locomotive Firemen, supra, pp. 213-214 of 323 U.S., 65 S.Ct. 235. B. Indispensable parties. What we have said as to exhaustion of remedies makes it unnecessary for us to consider the additional issue relative to indispensable parties. Nevertheless, because of the nature of the case, we touch briefly upon it. The parties so claimed by the defendants to be indispensable are the Brotherhood and those employees whose seniority would be adversely affected by any decree in favor of these plaintiffs, 1. The Brotherhood. The amended petition incorporates verbatim the supplemental agreement of April 1963 and reveals the agreement to be one between the Brotherhood and the Missouri Pacific. In addition to claiming actual and punitive damages against the Brotherhood, the amended petition challenges the supplemental agreement and seeks to enjoin action under it. The Brotherhood, therefore, being a party to that agreement, is clearly an entity whose presence is indispensable to the maintenance of the present suit. Order of Railroad Telegraphers v. New Orleans T. & M. Ry., 229 F.2d 59, 67 (8 Cir. 1956), cert. denied 350 U.S. 997, 76 S.Ct. 548, 100 L.Ed. 861; Shields v. Barrow, 17 Howard (58 U.S.) 130, 139, 15 L.Ed. 158 (1855); Order of Railroad Telegraphers v. Union Pac. R.R., 231 F.Supp. 33, 36-37 (D.Colo.1964). Yet the Brotherhood is certainly not here as a direct party defendant. It is not even named in the amended petition. Three of its officers and its Gra,nd Lodge are named but service has not been effected even upon them. Although the particular System Board, the local lodges, and their respective officers are named and some of these have been served, it is the Brotherhood, not any subdivision or affiliate, which is the collective bargaining representative. Childers v. Brotherhood of R.R. Trainmen, 192 F.2d 956, 959-60 (8 Cir. 1951); Westchester Lodge 2186, Brotherhood of Railway Clerks, etc., v. Railway Express Agency, 218 F.Supp. 187, 189 (S.D.N.Y.1963), modified on other grounds, 329 F.2d 748 (2 Cir. 1964). The attempt at representation of the Brotherhood by a defendant class also fails. Rule 23(a), F.R.Civ.P., makes it clear that, for a federal court class action, it is necessary that (a) there be a class; (b) the class be so numerous as to make it impracticable to bring all before the court; (c) those representing the class be such as will fairly insure the adequate representation of all; and (d) the right sought to be enforced against the class is joint or common. See Montgomery Ward & Co. v. Langer, 168 F.2d 182, 187 (8 Cir. 1948). The existence of these factors in the present posture of this case is tested by the allegations of the complaint. The second factor is alleged but we fail to find sufficient indication of the others. The System Board, the lodges, and their officers, as such, are not members of any appropriate class here and, in any event, we are given no assurance that these essentially local entities are representative of the membership of this large Brotherhood as a whole or possess interests common to the entire Brotherhood so as fairly to “insure the adequate representation of all”. Johnson v. Riverland Levee Dist., 117 F.2d 711, 714-715 (8 Cir. 1941). See Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940). 2. Employees with seniority adversely affected. It is readily apparent that any local lodge member who holds Class A or Class B seniority and any Class C employee who has accepted the benefit of the supplemental agreement might well be adversely affected by any decree in this action. Such persons therefore are indispensable parties. Order of R.R. Telegraphers v. New Orleans T. & M. Ry., supra, p. 67 of 229 F.2d; Nix v. Spector Freight System, Inc., 264 F.2d 875, 877 (3 Cir. 1959). There has been no attempt, however, to define these particular adversely affected persons as a class. The need to do so is not fulfilled by an attempt to include the entire local membership, for this also embraces persons of differing and perhaps favored seniority status. There is, thus, an absence of the common interest essential for an appropriate class. The plaintiffs’ original petition was not peremptorily dismissed for lack of indispensable parties but, as indicated by Warner v. First Nat’l. Bank, 236 F.2d 853, 858 (8 Cir. 1956), cert. denied 352 U. S. 927, 77 S.Ct. 226, 1 L.Ed.2d 162; Olson v. Miller, 105 U.S.App.D.C. 55, 263 F.2d 738, 140-41 (D.C.Cir.1959); 3 Moore’s Federal Practice, Par. 21.04, pp. 2906-07 (2d Ed. 1964); 2 Barron & Holtzoff, Federal Practice & Procedure, § 542, p. 214 (Wright Rev. 1961), opportunity was afforded to remedy the procedural defect. However, the defect remains and there is now no alternative to dismissal. Affirmed . Art. 5, § 2(c), of the Constitution of the Brotherhood reads in full as follows: “(c) No officer, member or subordinate unit of this Brotherhood may resort to any Court of Law or Equity or other civil authority either as parties plaintiff or for the purpose of securing an opinion or decision in connection with any alleged grievance or wrong concerning any case in controversy arising within the organization or under its law, until such officer, member or subordinate unit first shall have exhausted all remedies by appeal or otherwise provided herein, not inconsistent with applicable law, for the settlement and disposition of such alleged rights, grievances or wrongs.” . Rule 18. “(k) An employe who considers himself unjustly treated shall have the same right of investigation, hearing and appeal as herein provided, if written request therefor is made to his immediate supervisor within seven days of the cause for complaint. “(l) The time limits herein may be extended by mutual agreement and do not apply in cases of request for leniency.” Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_usc1sect	2254	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Harvey D. CHRISTIAN, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee. No. 83-1086. United States Court of Appeals, Fifth Circuit. May 14, 1984. Sylvia Mandel, Staff Counsel for Inmates, TDC, Laurel D. Owens, Huntsville, Tex., for petitioner-appellant. Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee. Before POLITZ, RANDALL and JOLLY, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Harvey Don Christian asks that we set aside his life sentence imposed by a Texas court upon his conviction in 1976 for possession of a controlled substance. Christian argues that he is entitled to a writ of habeas corpus on the following grounds: first, the search warrant pursuant to which the controlled substance was discovered was not based upon probable cause; second, he was denied effective assistance of counsel during his state court trial. Finding each claimed error to be without merit, we affirm the district court’s dismissal of Christian’s habeas corpus petition. I. On April 23, 1976, Christian was stopped for speeding by two Waco, Texas, police officers. After one of the police officers spotted what appeared to be a rifle or shotgun butt on the car’s floorboard, they decided to subject Christian to a pat-down search. During the pat-down, a matchbox was discovered. When the matchbox, which contained a white powder, was opened, Christian fled. He was captured by the officers and arrested. His car was impounded. The next day, a Waco police officer applied for a warrant to search Christian’s car for methamphetamine. The officer based the application on a tip received from a confidential informant. The police officer stated in the affidavit filed in support of the warrant that probable cause for his belief that methamphetamine was concealed in the car was based upon the following facts: On this day an informant, whose name is withheld for security reasons, told affi-ant that said suspected party is now keeping and possessing what the affiant believed to be methamphetamine in said suspected vehicle and stated to affiant as an underlying circumstance supporting that conclusion that with [sic] the past 24 hours, such informant saw controlled substance. Affiant believes that this information given them is reliable and that such informant is credible for the following reason: such informant, on two separate occasions during the past year, gave affiant accurate reports about law violations. Based upon the affidavit, a Justice of the Peace of McLennan County, Texas, issued the search warrant. The search of the automobile produced one package of marijuana and two bags of methamphetamine. Christian was indicted for possession of a controlled substance, i.e., methamphetamine, and two previous felony convictions were alleged in the indictment for enhancement purposes. At his trial, Christian’s counsel challenged the pat-down search that disclosed the matchbox and contended that the subsequent discovery of the methamphetamine was the fruit of the pat-down. The trial court refused to suppress either the matchbox or the methamphetamine. Christian was convicted by a jury. At the punishment phase of his trial, the court found that Christian had been convicted of felonies on two previous occasions and assessed his punishment at imprisonment for life. On direct appeal, the Texas Court of Criminal Appeals affirmed Christian’s conviction in an unpublished opinion. On rehearing en banc, the court reaffirmed that conviction. Christian v. State, 592 S.W.2d 625 (Tex.Cr.App.1980) (en banc). In its opinion, the court ruled that there was no probable cause for the pat-down search that revealed the matchbox. It held, however, that the methamphetamine taken from Christian’s car was not discovered by exploitation of the pat-down search. Id. at 631. Christian subsequently filed a state habe-as corpus petition challenging the sufficiency of the affidavit which was used to obtain the search warrant and the effectiveness of his trial counsel. Christian based his claim of ineffectiveness of trial counsel on his counsel’s failure to challenge the sufficiency of the affidavit. The state courts rejected these claims. Christian then filed his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raised the same claims. The district court, finding that Christian had been afforded an opportunity for full and fair litigation of his fourth amendment claim as contemplated by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), rejected his challenge concerning the sufficiency of the affidavit. Reasoning that the sole basis for the alleged ineffectiveness was a frivolous, fourth-amendment claim, the district court also rejected the claim of ineffective assistance of counsel. Christian appeals. II. In Stone v. Powell, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial.” 428 U.S. at 494, 96 S.Ct. at 3052. In the present case, Christian contends that the bar of Stone v. Powell should not apply because he was not allowed a full and fair opportunity to litigate his fourth amendment claim concerning the sufficiency of the affidavit. He argues that he was denied such an opportunity because the state habeas corpus erroneously held that his fourth amendment challenge to the affidavit had previously been adjudicated on direct appeal. In Williams v. Brown, 609 F.2d 216, 220 (5th Cir.1980), we held that the bar of Stone v. Powell still applies despite the fact that the consideration of the fourth amendment claim by a state habeas court had been prevented by the court’s error in holding that the claim had already been presented. This court stated: [I]n the absence of allegations that the processes provided by a state to fully and fairly litigate fourth amendment claims are routinely or systematically applied in such a way as to prevent the actual litigation of fourth amendment claims on their merits, the rationale of Caver dictates that Swicegood’s application of Stone despite a mistake in adjudicating the merits must apply with equal force to procedural mistakes that thwart the presentation of fourth amendment claims. Accordingly, we find that the district court correctly dismissed petitioner’s fourth amendment claims as being barred by Stone v. Powell. Id. at 220. Christian’s claim concerning the affidavit’s sufficiency is foreclosed by Williams. III. Christian contends that his counsel was ineffective because he failed to file a motion to suppress the methamphetamine seized pursuant to the search warrant. Though unresolved in our circuit, recent decisions indicate doubt as to whether Christian’s sixth amendment claim may be considered. In Li Puma v. Commissioner, Department of Corrections, State of New York, 560 F.2d 84 (2d Cir.1977), the Second Circuit applied Stone v. Powell to bar consideration of a habeas petitioner’s contention that his counsel was ineffective because of his failure to file a motion to suppress. The court stated that “the fact that petitioner’s claim is ostensibly grounded on the sixth, rather than the fourth, amendment does not negate Stone’s applicability, because at the heart of this case lies an alleged fourth amendment violation.” Id. at 93 n. 6. On the other hand, in Sallie v. North Carolina, 587 F.2d 636, 640-41 (4th Cir.1978), the Fourth Circuit did not read Stone v. Powell to prevent habeas corpus relief in the same circumstances. Because of the manner of disposition of the case before us today, it is unnecessary for us to decide with which circuit we agree. Here, the district court failed to consider the applicability of Stone v. Powell to Christian’s sixth amendment claim. It held that there was no sixth amendment violation because a motion to suppress the methamphetamine would have been unsuccessful. Because we agree, we find it unnecessary to consider whether Stone v. Powell, in proper circumstances, would bar habeas corpus relief on a sixth amendment claim which was based on a fourth amendment violation. To prevail on his claim that he was denied his sixth amendment right to effective counsel, Christian has the burden of showing that his coúnsel’s efforts were inadequate and that the counsel’s ineffectiveness resulted in an actual and substantial disadvantage to the course of his defense. Baldwin v. Maggio, 704 F.2d 1325 (5th Cir.1983). Here, Christian would not have been prejudiced by his counsel’s failure to file a motion to suppress if such a motion were to be denied. In an attempt to meet his burden of showing prejudice, Christian contends that the affidavit used in procuring the search warrant was insufficient to establish probable cause. Relying on the two-prong Aguilar-Spinelli test for determining the sufficiency of an affidavit based upon information supplied by a confidential informant, Christian argues that the affidavit failed to establish probable cause because it contained (1) insufficient assertions of the informant’s reliability and (2) insufficient assertions regarding the basis of the informant’s knowledge that methamphetamine could be found in the impounded car. The affidavit, as noted supra, stated that “informant, on two separate occasions during the past year, gave affiant accurate reports about law violations.” In United States v. Hall, 545 F.2d 1008 (5th Cir.1977), this court stated that its decisions made it clear that a factual basis for the credibility of an informant can be supplied by an “explicit claim of past reliability.” The language of the affidavit in question revealed that the informant had proven to be a reliable source of accurate information about illegal activity. Such a statement concerning the reliability of the informant was sufficient to meet the credibility prong of the Aguilar-Spinelli test. United States v. Garner, 581 F.2d 481 (5th Cir. 1978); United States v. Hall, supra; United States v. Mendoza, 433 F.2d 891 (5th Cir.1970), cert. denied, 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225 (1971). The assertions of the affidavit also sufficiently describe the underlying factual basis for the informant’s conclusion that methamphetamine was in Christian’s car. The affidavit must be read in a realistic and common-sense manner and with a preference toward the warrant process. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir.1977). When this is done and hypertechnical consideration of the affidavit is avoided, the affidavit indicates that the informant had personally observed a specific drug in Christian’s car within the past twenty-four hours. A failure of the affidavit to reveal how it was known that the substance was methamphetamine, does not prevent a conclusion that the affidavit contained sufficient assertions regarding the informer’s basis of knowledge. See United States v. Cates, 663 F.2d 947, 948 (9th Cir.1981); United States v. House, 604 F.2d 1135, 1142 (8th Cir.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); United States v. Shipstead, 433 F.2d 368, 372 (9th Cir.1970). Because the affidavit satisfied the Aguillar-Spinelli test for determining the sufficiency of an affidavit based on an informer’s tip, a motion to suppress by Christian’s counsel would have failed. As a result, Christian has not been prejudiced by his counsel’s failure to file such a motion. Therefore, Christian’s sixth amendment claim of ineffective assistance of counsel is without merit. For the foregoing reasons, the district court’s dismissal of Christian’s habeas corpus petition is affirmed. AFFIRMED. . In Caver v. Alabama, 577 F.2d 1188 (5th Cir. 1978), this court observed that it is the existence of state processes allowing an opportunity for full and fair litigation of fourth amendment claims, rather than a defendant’s use of those processes, that serves the policies underlying the exclusionary rule and bars federal habeas corpus consideration of claims under Stone v. Powell. Id. at 1192-93. In Swicegood v. Alabama, 577 F.2d 1322, 1324-25 (5th Cir.1978), this court held that the bar of Stone v. Powell still applies despite a state court error in deciding the merits of a defendant’s fourth amendment claims. . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). . In Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527, the Supreme Court articulated a new, more flexible standard for evaluating the sufficiency of an affidavit based on an informer’s tip. This court has recently held that Gates should be retroactively applied. United States v. Mendoza, 727 F.2d 448 (5th Cir.1984) (on petition for rehearing). To petitioners tried when the Aguilar-Spinelli test was applicable, retroactive application of Gates would mean that if the writ were granted because, using the Aguilar-Spinelli test, his counsel’s failure to file a motion to suppress was ineffective assistance, the Gates analysis would apply at the retrial to determine if the evidence in question was admissible. Therefore, the application of Aguilar-Spinelli to determine whether counsel's failure to file a motion to suppress prejudiced a petitioner may be an exercise in futility. We are, fortunately, able to leave this question for resolution by others. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_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. Arnold L. CAMPBELL, Appellant, v. UNITED STATES of America, Appellee. Nos. 14309-14311. United States Court of Appeals District of Columbia Circuit. Argued May 28, 1958. Decided June 26, 1958. Mr. James M. Earnest, Washington, D. C. (appointed by this court) for appellant. Mr. Harry T. Alexander, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Carl W. Belcher and Thomas A. Flannery, Asst. U. S. Attys., were on the brief, for appellee. Before Edgerton, Chief Judge, and Fahy and Burger, Circuit Judges. PER CURIAM. These are appeals' from the denial without a hearing of a motion which had been filed in the District Court under 28 U.S.C. § 2255 (1952). The motion attacked the validity of certain sentences which had been imposed upon appellant, as now explained. He had been indicted in case No. 804-54 on two counts for robbery, in violation of section 22-2901, D. C.Code (1951), in case No. 805-54 on four counts for robbery in violation of the same statute, and in case No. 806-54 for attempted robbery in violation of section 22-2902, D.C.Code (1951), on one count. He entered pleas of guilty and was sentenced on the first indictment from two to six years, on each of the four counts of the second indictment from one to three years, these sentences to take effect consecutively with one another and consecutively also with the sentence on the first indictment, and on the third indictment from one to three years, concurrently with the sentences already referred to. His motion is to the effect, inter alia, that he actually pleaded to only one count in each of the three indictments. An examination of the transcript of the proceedings at the time he entered his pleas convinces us that he is correct in this respect. The result is that the sentence on the last indictment of one count (No. 806-54) should not be disturbed; the sentence on the second indictment (No. 805-54) should be set aside except as to one sentence from one to three years; and, as to the first indictment (No. 804-54), the District Court may resentence appellant if it so desires since the present sentence under that indictment of two to six years is a general sentence covering two counts, and might have been less if imposed with respect to only one count. It is so ordered. . 31 Stat. 1322 (1901). . Ibid. . The sentence in No. 804-54 may not be increased, since it was valid and has been partially served. Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872; Hayes v. United States, 102 U.S.App. D.C. 1, 249 F.2d 516 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_usc1sect	1252	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 8. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES of America, ex rel. Matthew BRZOVICH, Petitioner-Appellant, and Matthew Brzovich, Plaintiff-Appellant, v. Ralph D. HOLTON, District Director of Immigration, United States Department of Justice, Respondent-Appellee. No. 11267. United States Court of Appeals Seventh Circuit. June 1, 1955. Irving G. Steinberg, Edmund Hatfield, Chicago, 111., for appellant. Robert Tieken, U. S. Atty., Anna R. Lavin, Asst. U. S. Atty., Chicago, 111., for appellee. Before DUFFY, Chief Judge, and MAJOR and SWAIM, Circuit Judges. MAJOR, Circuit Judge. Petitioner, Matthew Brzovich, filed his petition for a writ of habeas corpus to set aside an order of deportation; in the alternative, he petitioned for judicial review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. The District Court discharged the writ of habeas corpus and in the same order denied review under the Administrative Procedure Act. From this order petitioner appeals. We need not be concerned with the twofold form of relief sought because it has recently been held by the Supreme Court that the validity of a deportation order may be tested either by habeas corpus or by review under the Administrative Procedure Act. Shaughnessy v. Pedreiro, 1955, 75 S.Ct. 591. And we think that our scope of review is the same, irrespective , of which procedure is employed. The order under attack, issued by the Attorney General, charged that petitioner was present in the United States in violation of the Act of October 16, 1918, as amended, in that he was, after entry, a member of the following class set forth in Section 1 of that Act: an alien who is a member of the Communist Party of the United States. A hearing on the order to show cause why petitioner should not be deported was held before a Special Inquiry Officer in the offices of the Immigration Service in Chicago, which culminated in a final hearing on February 5, 1953. That officer, after reviewing and analyzing the evidence, stated: “The Special Inquiry Officer has carefully examined the entire record in this matter and believes that the evidence is not of a sufficiently reasonable, substantial and probative nature to justify the conclusion that this respondent was a member of the Communist Party of the United States after entry. * * * Accordingly, an order terminating the proceedings will be entered.” The officer found as a fact: “That it has not been established that the respondent was a member of the Communist Party of the United States after entry,” and concluded : “That under the Act of October 16, 1918, as amended, the respondent is not subject to deportation on the ground that he is found to have been, after entry, a member of the following class, set forth in Section 1 of said Act: an alien who is a member of the Communist Party of the United States.” The Board of Immigration Appeals directed that the case be certified to it for the entry of a final order. The Board also reviewed the record in detail and in its decision, relative to petitioner, stated: “That he was a Communist Party member is established. The decision of the special inquiry officer must.be reversed. Deportation will be ordered.” Thereupon, a deportation order was entered on the charge stated in the warrant, of arrest. While numerous issues have been argued, we are of the view that the principal and controlling issue is whether the deportation order was based upon “reasonable, substantial, and probative evidence.” This issue involves the question as to whether the action of the Board in its refusal to accept the finding of the Special Inquiry Officer was capricious, arbitrary and without authority of law. On this question we are without the aid of authority other than the statutory provisions and the regulations promulgated pursuant thereto. The dearth of authority is no doubt due to the fact that the present proceeding is under the Immigration and Nationality Act of 1952, in which marked changes were made in thé procedure to be employed in a deportation proceeding. Section 242(b) of the Act, Title 8 U.S. C.A. § 1252(b) provides: “A special inquiry officer shall conduct proceedings under this section to determine the de-portability of any alien, and shall administer oaths, present and receive evidence, interrogate, examine, and cross-examine the alien or witnesses, and, as authorized by the Attorney General, shall make determinations, including orders of deportation.” This section further delineates the procedure to be employed and provides: “Proceedings before a special inquiry officer acting under the provisions of this section shall be in accordance with such regulations, not inconsistent with this chapter, as the Attorney General shall prescribe. Such regulations shall include requirements that—* * * (4) no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.” The section further provides: “The procedure so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien under this section. In any case in which an alien is ordered deported from the United States under the provisions of this chapter, * * * the decision of the Attorney General shall be final.” (In the recent case of Shaughnessy v. Pedreiro, supra, it was held that “final” referred to the administrative procedure and not to a judicial review.) The rules and regulations promulgated by the Immigration and Naturalization Service pursuant to the statutory authority (17 F.R. 11469, 11514, 11515) provide among other things: “The special hearing officer shall conduct a fair and impartial hearing. No decision of deportability shall be valid unless based upon reasonable, substantial and probative evidence,” and further: “ * * * the special hearing officer shall, as soon as practicable after the conclusion of the hearing, prepare a written decision signed by him which shall set forth a summary of the evidence adduced and his findings of fact and conclusions of law as to deportability * * .” The rules and regulations relative to the order to be made by the Special Inquiry Officer provide that such order “shall be (1) that the alien be deported, or (2) that the proceedings be terminated, * * or (5) that such other action be taken in the proceedings as may be required for the appropriate disposition of the case.” We are aware of nothing in the statute or rules and regulations which confers upon the Board any authority other than to hear oral argument on appeal. It appears evident that it is given no authority to make findings of fact or to try an issue de novo. It is endowed only with the typical reviewing function. This view finds support in the comments on the Act by the legislative assistant to the House Judiciary Committee, wherein it is stated: “The Board has appellate jurisdiction from: (1) Decisions of special inquiry officers in exclusion and deportation cases * * Title 8 U.S. C.A. page 50. Thus the responsibility of conducting a fair and impartial hearing, with making findings of fact and conclusions of law, is placed squarely upon the Special Inquiry Officer and such findings must rest upon evidence which is “reasonable, substantial, and probative.” It appears that the Board is bound by the findings of the Special Inquiry Officer, if substantially supported, in the same manner and to the same extent as is a court of review. It is interesting and of some relevancy to note the contrast between the statutory scheme provided in thi» Act and that contained in the National Labor Relations Act, Title 29 U.S.C.A. § 151 et seq. In the latter Act the hearing officer makes a record with his recommendation, without findings of fact or conclusions of law. The Board is charged with the responsibility of making findings and is also empowered to hear additional testimony. Even so, courts have had difficulty in reconciling their findings of fact when contrary to the recommendation of the hearing officer, because it is the latter who sees and hears the witnesses and is thus in the better position to weigh and evaluate the testimony. In Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 492, 71 S.Ct. 456, 95 L.Ed. 456, the court discusses the problem, with numerous pertinent observations, the net result of which is that in a case where the Board makes findings contrary to the recommendations of its hearing officer, a court on review, in determining the substan-tiality of the evidence, must consider and evaluate the recommendations of the hearing officer as a part of the record. Such being the case under a statute which places the responsibility of making findings not upon the hearing officer but upon the Board, the importance of the report of the hearing officer who is charged with the responsibility of making such findings, as under the instant Act, would appear to occupy a well near invincible position. Assuming arguendo that we are in error in our appraisement of the limited scope of review possessed by the Board, we still think that under the circumstances its action in rejecting the findings of the Special Inquiry Officer was not justified and must be characterized as capricious, arbitrary and not in accordance with law. In support of such view, we think it unnecessary to enter into a detailed discussion of the evidence. It is sufficient to note that we have read and studied the analysis of the evidence made both by the Special Inquiry Officer and by the Board and are definitely of the view that there is no sound or logical basis for casting aside the findings of the officer who heard and saw the witnesses and who was in a better position to evaluate and weigh the testimony than the Board or this court. Briefly, petitioner, a resident of Chicago for the past twenty-five years, came to the United States in 1915. He is married and has a son, a native born citizen of the United States. From the time he was taken into custody by the Immigration Service to the present, he has been enlarged on bail and, therefore, has not been considered a security risk. The sole witness who testified against petitioner was one Cvetic, who joined the Communist Party in 1943 as a salaried agent of the F. B. I., and who acted as a professional witness in numerous Communist trials and deportation proceedings. He testified that he met petitioner at a meeting of the Communist Party held in Cleveland, Ohio, in the - latter part of 1948. His testimony on this point, however, was in some respects evasive- and conflicting. The witness also testified that petitioner had sold subscriptions for a Croation language newspaper, Narodni Glasnik, published- in Pittsburgh, and that petitioner had written articles for it as a correspondent in Chicago. This testimony indicated that this newspaper was controlled by the Communist Party. We have read these articles introduced in evidence and we find not a single word which would indicate that petitioner was a Communist. It is claimed that petitioner was a paid employee of the newspaper and that no persons were so employed other than Communists., The evidence on this score raises no more than an anemic suspicion. The Board in its analysis of the evidence relies upon the testimony of Cvetic “that the respondent [petitioner] was commonly referred to as a member of the Communist Party by other Communists who considered him a responsible and active member in the Chicago area,” and that “his experience [that of the. witness] revealed that only persons who are Party members are hired to work on the staff of the paper and that assignments to jobs on the newspaper are made by the Communist Party.” This testimony was hearsay and has no more probative value than the tattlings from a town meeting. Surely this evidence does not meet the strict standard which Congress has erected, that is, that the evidence must be “reasonable, substantial, and probative.” We are left in doubt from respondent’s brief as to whether he takes serious issue with our view as to the limited function of the Board. Rather, the Board’s action is sought to be justified on a theory that its decision was only one of law, that is, that the hearing officer erred as a matter of law in deciding that the evidence of petitioner’s membership in the Communist Party was not “reasonable, substantial, and probative.” It is pointed out that the hearing officer made no finding as to the credibility of the witness Cvetic. This is merely a play upon words. True, he did not employ that particular characterization but it is inherent - in the findings which he did make that he regarded the testimony of the witness as unbelievable and incredible. Assuming that issues of law are involved, it must be conceded that such issues rested upon a factual premise which involved the weight to be attached to testimony of Cvetic, a determination of which was the function of the hearing officer. Moreover, if we accept respondent’s theory that the Board in reversing the hearing officer decided only an issue of law, we are still confronted with making a decision on the same issue, and we think it is not open to question but that our scope of review is at least as broad as that of the Board. Certainly we are charged with the responsibility of deciding questions of law. We agree with the Special Inquiry Officer that the proof was insufficient to justify a finding that petitioner was a member of the Communist Party. We agree, whether the issue be treated as factual or legal. It follows that any legal issue decided by the Board to the contrary was, in our judgment, erroneous. The order appealed from is reversed, the deportation order entered against petitioner is vacated, with directions that the proceedings against him be terminated, as directed by the Special Inquiry Officer. 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 8? Answer with a number. Answer:
sc_casesourcestate	01	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. BOYKIN v. ALABAMA. No. 642. Argued March 4, 1969. Decided June 2, 1969. E. Graham Gibbons, by appointment of the Court, 393 U. S. 931, argued the cause for petitioner. With him on the brief was Stephen A. Hopkins. David W. Clark, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was MacDonald Gallion, Attorney General. Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal. Mr. Justice Douglas delivered the opinion of the Court. In the spring of 1966, within the period of a fortnight, a series of armed robberies occurred in Mobile, Alabama. The victims, in each case, were local shopkeepers open at night who were forced by a gunman to hand over money. While robbing one grocery store, the assailant fired his gun once, sending a bullet through a door into the ceiling. A few days earlier in a drugstore, the robber had allowed his gun to discharge in such a way that the bullet, on ricochet from the floor, struck a customer in the leg. Shortly thereafter, a local grand jury returned five indictments against petitioner, a 27-year-old Negro, for common-law robbery — an offense punishable in Alabama by death. Before the matter came to trial, the court determined that petitioner was indigent and appointed counsel to represent him. Three days later, at his arraignment, petitioner pleaded guilty to all five indictments. So far as the record shows, the judge asked no questions of petitioner concerning his plea, and petitioner did not address the court. Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it. Alabama provides that when a defendant pleads guilty, “the court must cause the punishment to be determined by a jury” (except where it is required to be fixed by the court) and may “cause witnesses to be examined, to ascertain the character of the offense.” Ala. Code, Tit. 15, §277 (1958). In the present case a trial of that dimension was held, the prosecution presenting its ease largely through eyewitness testimony. Although counsel for petitioner engaged in cursory cross-examination, petitioner neither testified himself nor presented testimony concerning his character and background. There was nothing to indicate that he had a prior criminal record. In instructing the jury, the judge stressed that petitioner had pleaded guilty in five cases of robbery, defined as “the felonious taking of money . . . from another against his will ... by violence or by putting him in fear . . . [carrying] from ten years minimum in the penitentiary to the supreme penalty of death by electrocution.” The jury, upon deliberation, found petitioner guilty and sentenced him severally to die on each of the five indictments. Taking an automatic appeal to the Alabama Supreme Court, petitioner argued that a sentence of death for common-law robbery was cruel and unusual punishment within the meaning of the Federal Constitution, a suggestion which that court unanimously rejected. 281 Ala. 659, 207 So. 2d 412. On their own motion, however, four of the seven justices discussed the constitutionality of the process by which the trial judge had accepted petitioner’s guilty plea. From the order affirming the trial court, three justices dissented on the ground that the record was inadequate to show that petitioner had intelligently and knowingly pleaded guilty. The fourth member concurred separately, conceding that “a trial judge should not accept a guilty plea unless he has determined that such a plea was voluntarily and knowingly entered by the defendant,” but refusing “ [f] or aught appearing” “to presume that the trial judge failed to do his duty.” 281 Ala., at 662, 663, 207 So. 2d, at 414, 416. We granted certiorari. 393 U. S. 820. Respondent does not suggest that we lack jurisdiction to review the voluntary character of petitioner’s guilty plea because he failed to raise that federal question below and the state court failed to pass upon it. But the question was raised on oral argument and we conclude that it is properly presented. The very Alabama statute (Ala. Code, Tit. 15, § 382 (10) (1958)) that provides automatic appeal in capital cases also requires the reviewing court to comb the record for “any error prejudicial to the appellant, even though not called to our attention in brief of counsel.” Lee v. State, 265 Ala. 623, 630, 93 So. 2d 757, 763. The automatic appeal statute “is the only provision under the Plain Error doctrine of which we are aware in Alabama criminal appellate review.” Douglas v. State, 42 Ala. App. 314, 331, n. 6, 163 So. 2d 477, 494, n. 6. In the words of the Alabama Supreme Court: “Perhaps it is well to note that in reviewing a death case under the automatic appeal statute, . . . we may consider any testimony that was seriously prejudicial to the rights of the appellant and may reverse thereon, even though no lawful objection or exception was made thereto. [Citations omitted.] Our review is not limited to the matters brought to our attention in brief of counsel.” Duncan v. State, 278 Ala. 145, 157, 176 So. 2d 840, 851. It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary. That error, under Alabama procedure, was properly before the court below and considered explicitly by a majority of the justices and is properly before us on review. A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. See Kercheval v. United States, 274 U. S. 220, 223. Admissibility of a confession must be based on a “reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.” Jackson v. Denno, 378 U. S. 368, 387. The requirement that the prosecution spread on the record the prerequisites of a valid waiver is no constitutional innovation. In Carnley v. Cochran, 369 U. S. 506, 516, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.” We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For, as we have said, a plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality. The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards. Douglas v. Alabama, 380 U. S. 415, 422. Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U. S. 1. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U. S. 145. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U. S. 400. We cannot presume a waiver of these three important federal rights from a silent record. What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought (Garner v. Louisiana, 368 U. S. 157, 173; Specht v. Patterson, 386 U. S. 605, 610), and forestalls the spin-off of collateral proceedings that seek to probe murky memories. The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error “because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.” 281 Ala., at 663, 207 So. 2d, at 415. Reversed. Hamilton v. Alabama, 368 U. S. 52; Ala. Code, Tit. 15, §§ 318 (1) — (12) (Supp. 1967). The elements of robbery in Alabama are derived from the common law, but the possible penalties are fixed by statute. Ala. Code, Tit. 14, §415 (1958). This is unlike Cardinale v. Louisiana, 394 U. S. 437, in which the state court was perhaps unacquainted with the federal question at issue. For, as already stated, four of the seven justices on the court below (a majority) discussed the matter and its implications for Alabama law. “A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need be advanced .... It supplies both evidence and verdict, ending controversy.” Woodard v. State,, 42 Ala. App. 552, 558, 171 So. 2d 462, 469. In the federal regime we have Rule 11 of the Federal Rules of Criminal Procedure which governs the duty of the trial judge before accepting a guilty plea. See McCarthy v. United States, 394 U. S. 459. We said in that case: “A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” Id., at 466. Among the States requiring that an effective waiver of the right to plead not guilty appear affirmatively in the record are Colorado, Colo. Rev. Stat. Ann. § 39-7-8; Illinois, Ill. Rev. Stat., c. 38, §§ 113-1 to 114-14; Missouri, State v. Blaylock, 394 S. W. 2d 364 (1965); New York, People v. Seaton, 19 N. Y. 2d 404, 407, 227 N. E. 2d 294, 295 (1967); Wisconsin, State v. Burke, 22 Wis. 2d 486, 494, 126 N. W. 2d 91, 96 (1964); and Washington, Woods v. Rhay, 68 Wash. 2d 601, 605, 414 P. 2d 601, 604 (1966). “A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.” Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 105-106, 237 A. 2d 196, 197-198 (1968). Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_issuearea	B	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. GRIFFIN et al. v. MARYLAND. No. 6. Argued November 5, 7, 1962. Restored to the calendar for reargument May 20, 1963. Reargued October 14-15, 1963. Decided June 22, 1964. Joseph L. Ranh, Jr. and Jack Greenberg argued the cause for petitioners on the reargument. With them on the brief were John Silard, Daniel H. Pollitt, Joseph H. Sharlitt and James M. Nabrit III. Mr. Rauh argued the cause for petitioners on the original argument. With him on the brief were Messrs. Silard, Sharlitt, Greenberg and Nabrit. Robert C. Murphy, Deputy Attorney General of Maryland, and Russell R. Reno, Jr., Assistant Attorney General, argued the cause for respondent on the reargument. With Mr. Murphy on the brief were Thomas B. Finan, Attorney General of Maryland, and Loring E. Hawes, Assistant Attorney General. Mr. Murphy, then Assistant Attorney General of Maryland, and Joseph S. Kaufman, then Deputy Attorney General, argued the cause for respondent on the original argument. With them on the brief was Mr. Finan. Ralph S. Spritzer, by special leave of Court, argued the cause for the United States on the reargument, as amicus curiae, urging reversal. With him on the briefs were Solicitor General Cox, Assistant Attorney General Marshall, Louis F. Claiborne, Harold H. Greene, Howard A. Glick-stein and David Rubin. Mr. Cox, by special leave of Court, argued the cause for the United States on the original argument, as amicus curiae, urging reversal. With him on the brief were Messrs. Marshall, Claiborne and Greene. Mr. Chief Justice Warren delivered the opinion of the Court. Petitioners were convicted of criminal trespass for refusing to leave a privately owned and operated amusement park in the State of Maryland at the command of an employee of the amusement park acting under color of his authority as a deputy sheriff. For the reasons set forth hereinafter we hold that these convictions are violative of the Fourteenth Amendment and must be set aside. The Glen Echo Amusement Park is located in Montgomery County, Maryland, near Washington, D. C. Though the park through its advertisements sought the patronage of the general public, it was (until recently) the park’s policy to exclude Negroes who wished to patronize its facilities. No signs at the park apprised persons of this policy or otherwise indicated that all comers were not welcome. No tickets of admission were required. In protest against the park’s policy of segregation a number of whites and Negroes picketed the park on June 30, 1960. The petitioners, five young Negroes, were participating in the protest. Hopeful that the management might change its policy, they entered the park, and encountering no resistance from the park employees, boarded the carousel. They possessed transfer-rable tickets, previously purchased by others, entitling the holder to ride on the carousel. At that time the park employed one Collins as a special policeman by arrangement with the National Detective Agency. Although Collins was formally retained and paid by the agency and wore its uniform, he was subject to the control and direction of the park management. Apparently at the request of the park, Collins had been deputized as a sheriff of Montgomery County. He wore, on the outside of his uniform, a deputy sheriff’s badge. When Collins saw the petitioners sitting on the carousel waiting for the ride to begin, he reported their presence to the park manager. The manager told Collins that petitioners were to be arrested for trespassing if they would not leave the park. Collins then went up to the petitioners and told them that it was the park’s policy “not to have colored people on the rides, or in the park.” He ordered petitioners to leave within five minutes. They declined to do so, pointing out that they had tickets for the carousel. There was no evidence that any of the petitioners were disorderly. At the end of the five-minute period Collins, as he testified, “went to each defendant and told them that the time was up and that they were under arrest for trespassing.” Collins transported the petitioners to the Montgomery County police station. There he filled out a form titled “Application for Warrant by Police Officer.” The application stated: “Francis J. Collins, being first duly sworn, on oath doth depose and say: That he is a member of the Montgomery deputy sheriff Department and as such, on the 30th day of June, 1960, at about the hour of 8:45 P. M. he did observe the defendant William L. Griffin in Glen Echo Park which is private property[.] [0]n order of Kebar Inc. owners of Glen Echo Park the defendant] was asked to leave the park and after giving him reasonable time to comply the def [endant] refused to leave [and] he was placed under arrest for trespassing .... “Whereas, Francis J. Collins doth further depose and say that he, as a member of the Montgomery County Police Department believes that--is violating Sec. 577 Article 27 of the Annotated Code of Maryland. “Francis J. Collins.” Md. Ann. Code, 1957 (Cum. Supp. 1961), Art. 27, § 577, is a criminal trespass statute. On the same day a Maryland Justice of the Peace issued a warrant which charged that petitioner Griffin “[d]id enter upon and pass over the land and premises of Glen Echo Park . . . after having been told by the Deputy Sheriff for Glen Echo Park, to leave the Property, and after giving him a reasonable time to comply, he did not leave . . . contrary to the . . . [Maryland criminal trespass statute] and against the peace, government and dignity of the State.” The warrant recited that the complaint had been made by “Collins Deputy Sheriff.” An amended warrant was later filed. It stated that the complaint had been made by “Collins, Deputy Sheriff” but charged Griffin with unlawfully entering the park after having been told not to do so by “an Agent” of the corporation which operated the park. Presumably identical documents were filed with respect to the other petitioners. Petitioners were tried and convicted of criminal trespass in the Circuit Court of Montgomery County. Each was sentenced to pay a fine of $100. The Maryland Court of Appeals affirmed the convictions. 225 Md. 422, 171 A. 2d 717. That court, rejecting the petitioners’ constitutional claims, reasoned as follows: “[T]he appellants in this case . . . were arrested for criminal trespass committed in the presence of a special deputy sheriff of Montgomery County (who was also the agent of the park operator) after they had been duly notified to leave but refused to do so. It follows — since the offense for which these appellants were arrested was a misdemeanor committed in the presence of the park officer who had a right to arrest them, either in his private capacity as an agent or employee of the operator of- the park or in his limited capacity as a special deputy sheriff in the amusement park . . . — the arrest of these appellants for a criminal trespass in this manner was no more than if a regular police officer had been called upon to make the arrest for a crime committed in his presence .... [T]he arrest and conviction of these appellants for a criminal trespass as a result of the enforcement by the operator of the park of its lawful policy of segregation, did not constitute such action as may fairly be said to be that of the State.” 225 Md., at 431, 171 A. 2d, at 721. We granted certiorari, 370 U. S. 935, and set the case for reargument. 373 U. S. 920. Collins — in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them — purported to exercise the authority of a deputy sheriff. He wore a sheriff’s badge and consistently identified himself as a deputy sheriff rather than as an employee of the park. Though an amended warrant was filed stating that petitioners had committéd an offense because they entered the park after an “agent” of the park told them not to do so, this change has little, if any, bearing on the character of the authority which Collins initially purported to exercise. If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law. See, e. g., Screws v. United States, 325 U. S. 91. Thus, it is clear that Collins’ action was state action. See Williams v. United States, 341 U. S. 97; see also Labor Board v. Jones & Laughlin Steel Corp., 331 U. S. 416, 429. The only question remaining in this case is whether Collins’ action denied petitioners the equal protection of the laws secured to them by the Fourteenth Amendment. If it did, these convictions are invalid. It cannot be disputed that if the State of Maryland had operated the amusement park on behalf of the owner thereof, and had enforced the owner’s policy of racial segregation against petitioners, petitioners would have been deprived of the equal protection of the laws. Pennsylvania v. Board of Trusts, 353 U. S. 230; cf. Burton v. Wilmington Parking Authority, 365 U. S. 715. In the Board of Trusts case we were confronted with the following situation. Stephen Girard by will had left a fund in trust to establish a college. He had provided in his will, in effect, that only “poor white male orphans” were to be admitted. The fund was administered by the Board of Directors of City Trusts of the City of Philadelphia as trustee. In accord with the provisions of the will it denied admission to two Negro applicants who were otherwise qualified. We held: “The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U. S. 483.” 353 U. S., at 231. The Board of Trusts case must be taken to establish that to the extent that the State undertakes an obligation to enforce a private policy of racial segregation, the State is charged with racial discrimination and violates the Fourteenth Amendment. It is argued that the State may nevertheless constitutionally enforce an owner’s desire to exclude particular persons from his premises even if the owner’s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner’s ultimate purpose is immaterial to the State. In this case it cannot be said that Collins was simply enforcing the park management’s desire to exclude designated individuals from the premises. The president of the corporation which owned and managed the park testified that he had instructed Collins to enforce the park’s policy of racial segregation. Collins was told to exclude Negroes from the park and escort them from the park if they entered. He was instructed to arrest Negroes for trespassing if they did not leave the park when he ordered them to do so. In short, Collins, as stated by the Maryland Court of Appeals, was “then under contract to protect and enforce . . . [the] racial segregation policy of the operator of the amusement park . . . .” 225 Md., at 430, 171 A. 2d, at 720. Pursuant to this obligation Collins ordered petitioners to leave and arrested them, as he testified, because they were Negroes. This was state action forbidden by the Fourteenth Amendment. Reversed. Mr. Justice Douglas would reverse for the reasons stated in his opinion in Bell v. Maryland, post, p. 242. The Maryland Court of Appeals opinion below stated that Collins was deputized at the request of the park management pursuant to § 2-91 of the Montgomery County Code of 1955 which provides that the sheriff “on application of any corporation or individual, may appoint special deputy sheriffs for duty in connection with the property of . . . such corporation or individual; such special deputy sheriffs to be paid wholly by the corporation or person on whose account their appointments are made. Such special deputy sheriffs .. . shall have the same power and authority as deputy sheriffs possess within the area to which they are appointed and in no other area.” 225 Md. 422, 430, 171 A. 2d 717, 721. That section provides: “Any person . . . who shall enter upon or cross over the land, premises or private property of any person . . . after having been duly notified by the owner or his agent not to do so shall be deemed guilty of a misdemeanor . . . provided . . . [however] that nothing in this section shall be construed to include within its provisions the entry upon or crossing over any land when such entry or crossing is done under a bona fide claim of right or ownership of said land, it being the intention of this section only to prohibit any wanton trespass upon the private land of others.” Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_respond1_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 respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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, Appellant, v. Dale Paul GLUP, Appellee. Crim. No. 72-1777. United States Court of Appeals, Eighth Circuit. Submitted May 17, 1973. Decided Aug. 13, 1973. Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellant. William M. Lamson, Jr., Omaha, Neb., for appellee. Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation. TALBOT SMITH, Senior District Judge. The case before us challenges the sufficiency of count one of the indictment. Such count alleges “that from on or about November 30, 1969 to on or about June 8, 1970, in the District of Nebraska, Dale Paul Glup willfully and knowingly engaged in the business of dealing in firearms in interstate commerce at 5608 Weir Street, Omaha, Nebraska, without having been licensed to do so under the provisions of Chapter 44, Title 18, United States Code. “In violation of section 922(a)(1) and 924(a), Title 18, United States Code.” The objection made is that the indictment “is vague and indefinite and fails to inform the accused of what acts he must defend against.” Reliance is had principally upon United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875), Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1886), and United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516 (1888). There was a time in the history of our law when the indictment was an instrument of such archaic and arcane verbosity that it served more to confuse than to enlighten. Thus an indictment for “Selling a Diseased Cow in the Public Market” required three printed pages of fine print. Such exercises are now, happily, things of the past. As we held in Taylor v. United States, 332 F.2d 918 (8th Cir. 1964): “Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A., provides in part: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement.” The Supreme Court in United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 114, 98 L.Ed. 92, in construing Rule 7 (c), stated: “ ‘The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” ’ ” [Quotation marks as appearing in original.] An analysis of the indictment, supra, in the light of the applicable statutes, set forth hereinabove, makes clear that it contains the elements of the offense charged. Our conclusion, as we noted in United States v. Anderson, 447 F.2d 833 (8th Cir. 1971), is strengthened by the fact that the indictment substantially follows those found in the Appendix of Forms attached to the Federal Rules of Criminal Procedure. It is true that the indictment before us is not replete with the details formerly thought necessary for a complete indictment. Thus appellant points out that he is not informed by the indictment whether he is to be tried as a seller of “bombs or grenades; rockets or missiles,” or is a “pawnbroker.” Such arguments, if accepted, would have no end as we proceeded next to what kind of a bomb was meant, or what was the category of missile or rocket. This is not to say that such questions may not be material. But what we must distinguish, in the issue before us, are those matters constitutionally essential from those informative only. Such discovery as is authorized by the Federal Rules of Criminal Procedure may be obtained by utilization, in part, of Rule 7(f), of a motion for a bill of particulars, its grant or denial remaining within the sound discretion of the trial court. The dismissal of the indictment is reversed and the case remanded. . 18 U.S.O., § 922. Unlawful acts (a) It shall be unlawful— (1) for any person, except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce; 18 U.S.C. § 924. Penalties (a) Whoever violates any provision of this chapter or knowingly makes any false statement or representation with respect to the information required by the provisions of this chapter to be kept in the records of a person licensed under this chapter, or in applying for any license or exemption or relief from disability under the provisions of this chapter, shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine. See, also, 18 U.S.C. §§ 921(a)(3) and (11) defining “firearm” and “dealer” respectively : 18 U.S.C. § 921. Definitions (a) As used in this chapter— (3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. (11) The term “dealer” means (A) any person engaged in the business of selling firearms or ammunition at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (O) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter. . Joyce, Indictments (1908), pp. 834-837. . “The [Rules] were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity of procedure.” United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953), reversing the dismissal of a perjury indictment for failure to state the name of the person administering the oath. See, also, Committee Notes on Rule 7(c), 8 Moore’s Federal Practice § 7.01 [2]:—“This rule introduces a simple form of indictment, illustrated by Forms 1 to 11 in the ‘Appendix of Forms’.” . See United States v. Bagdasian, 291 F.2d 163 (4th Cir. 1961), cert. den. 368 U. S. 834, 82 S.Ct. 60, 7 L.Ed.2d 36 (1961); Martin v. United States, 285 F.2d 150 (10th Cir. 1960), cert. den. 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816 (1961); Cf. Form 5, Fed.R.Crim.Proc.App. of Forms, indicting John Doe, in that “On or about the -- day of -, 19 — , in the - District of -, [he] carried on the business of a distiller without having given bond as required by law.” . “The specificity formerly held necessary to charge an offense is no longer required or sanctioned.” Donnelly v. United States, 185 F.2d 559 (10th Cir. 1950), cert. den. 340 U.S. 949, 71 S.Ct. 528, 95 L.Ed. 684 (1950). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. THE SOCONY NO. 19. Circuit Court of Appeals, Second Circuit. March 5, 1928. No. 181. 1. Collision <§=106 — Case of vessel maneuvering to. leave slip is one of “special circumstances.” The case of a vessel maneuvering to leave her slip is one of “special circumstances,” and ordinary steering and sailing rules and signals, made for vessels navigating on definite courses, do not apply. [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Special Circumstances.] 2. Collision <§=95(4) — Small launch held at fault for collision with barge being maneuvered out of slip by tug, where it did nothing to get out of way. Small motor launch held at fault in collision with barge, which tug was maneuvering out of slip, where launch, though having tug and barge in plain view for five minutes, did nothing to keep out of the way of their maneuvering. Appeal from the District Court of ■ the United States for the Eastern District of New York. Libel by the General Ship. Scaling Corporation against the steam tug Socony No. 19, her engines, boilers, etc., wherein the Standard Transportation Company is claimant. From an interlocutory decree holding the steam tug solely at fault for collision between barge, which tug had in tow, and libelant’s motor launch, claimant appeals. Reversed and remanded, with directions. Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, Richard F. Lenahan, and Pierre M. Brown, all of New York City, of counsel), for appellant. Bigham, Englar & Jones, of New York City (Charles W. Hagen, of New York City, of counsel), for appellee. Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The libelant’s vessel, Helene No. 2, was a motor launch, 57 feet in length, carrying heavy machinery and equipment, used for scaling vessels and for eleetrie welding/ She had a 32 horsepower gasoline motor, and 'her crew consisted of an operator and a man to handle the engines. Two other vessels concerned were the Socony No. 122, a loaded barge carrying fuel oil to ships, which was 250 feet long, and in tow of the Socony No. 19, a steam tug about 89 feet in length. The barge was on the south side of Pier 5, Bush Terminal, bow in. The tug went alongside No. 122 on her extreme stem quarter, and made fast to her with a strap, head line, and stem line. A deckhand was stationed as a lookout on the stern of the barge. Thereupon the tug blew the usual long slip whistle and proceeded to back the No. 122 out into the stream. When the barge had cleared the slip, the tug began to swing her around in order to get her on her course, which was to be up the river to Pier 35, Brooklyn. Meanwhile the Helene No. 2 was coming across the bay to Pier 5, Bush Docks, saw the Socony No. 19 when something less than a half mile away, and when she got within 600 or 700 feet of the pier gave a stop bell, because the Socony No. 19 was backing her barge out of the slip. When the tug, by backing her engines, had pivoted the barge, so that the latter was heading in a southerly direction, the Helene No. 2 assumed that she was going down the bay toward Staten Island, instead of up to Pier 35. As the Socony No. 19 swung her barge farther around, the Helene No. 2, who was then about 500 feet from the pier head, did not get out of' her way, and as a result was struck a swinging blow on her starboard bow by the overhang of the bow of the barge. • The master of the Socony No. 19 testified that, when the Helene No. 2 was 250 or 300 feet away from him, he saw her start her engines ahead, and that he then stopped his tug’s backward motion and put his wheel hard astarboard to shove his bow to the southward, away from the Helene No. 2. The master of the latter said she did not start up, but lay five minutes outside the pier, waiting for the Socony and her barge to proceed, and that when he saw the tug swinging her barge around, instead of proceeding south, as he had expected, he reversed his engine, but too late to avoid collision. He also said that the Socony pulled her barge out of the slip, got her in a position lying north and south and lengthwise of the ends of the piers, then let go her lines, made fast on the stem quarter of the barge, and started to pivot her around. The trial judge held that the collision was occasioned through the fault of the Socony No. 19 in failing to signal the Helene No 2 that the former was about to make a,, complete turn and go up the bay, and that there was no fault on the part of the Helene No. 2. He also seems to have found that the Socony made fast to the starboard quarter of her barge after she had got her out into the stream, in u position parallel to the pier ends; that the Helene No. 2 had come to a full stop before this, and did not come forward on her engines thereafter. It seems doubtful whether the Helene No. 2 did not come forward, for the Socony swung her barge around while backing her engines, and it is hard to see, when this was being done, how the barge could have extended out far enough to strike the Helene No. 2, if the latter had remained 500 feet outside of the pier ends. But, assuming that the finding of the trial court was correct, we still have a ease where the tug Socony was taking a heavy barge out of her pier to get her on a course. The small motor launch, Helene No. 2, according to the account of her master, instead of keeping out of the way of the barge, came within 500 feet of the pier heads, and then, though having the tug and barge in plain view for five minutes, did nothing to keep out of the way of their legitimate maneuvers, but practically lay still until she was struck. It is perfectly settled that the ease of a vessel maneuvering to leave her slip is one of special circumstances. The Servia, 149 U. S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The John Rugge (C. C. A.) 234 F. 861; The Washington (C. C. A.) 241 F. 952. Therefore ordinary steering and sailing rules and signals made for vessels navigating on definite courses do not apply. The Socony was executing a somewhat awkward maneuver, without taking any unnecessary room. She had blown her slip whistle; the Helene No. 2 plainly saw her, and was bound to keep out of her way while she was attempting to leave her slip and get on her course. Of course, the Socony could not be excused if she.recklessly ran into the barge; but she had a right to assume that a small launch, like the Helene No. 2, would get out of her way when there was plenty of time and space within which to do this, if the Helene No. 2 had begun to move in season. It is evident that, when a tug made fast to the stem quarter of a barge is swinging the barge, the leverage is all against the tug. It is a slow matter either to start or to stop her swing. This is an ample reason why the tug could not avert the collision with the Helene No. 2. She was justified in supposing the latter would make a seasonable effort to get out of the way, and with every natural force against her she did what she could to break the swing of the barge when the Helene No. 2 had taken no measures to get out of the way until too late. The fault relied on by the libelant to justify holding the Socony is that the latter attempted an unusual maneuver without giving some warning to the Helene No. 2. It is argued that the maneuver was unexpected, because the -Socony and her barge for a moment lay north and south, and were, therefore, apparently about to proceed down the bay. But when a tug has got her tow outside a slip, and has not yet started anywhere, there can be no justification in making assumptions as to her destination. She is still essentially maneuvering to get on her course. The unwarranted suppositions of the master of the Helene No. 2 can serve as no basis for requiring a signal by the Socony, nor is any signal appropriate to such a situation found in the admiralty rules, sanctioned by maritime practice, or pleaded as a fault in the libel. The interlocutory decree is reversed, and the cause is remanded, with directions to dismiss the libel, with costs. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_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". UNITED STATES of America, Plaintiff-Appellee, v. Walter CYLKOUSKI, Defendant-Appellant. No. 76-1964. United States Court of Appeals, Sixth Circuit. Argued Feb. 10, 1977. Decided May 4, 1977. Rehearing Denied July 14, 1977. A. J. Jolly, Fort Thomas, Ky., for defendant-appellant. Eldon L. Webb, U. S. Atty., James E. Arehart, Lexington, Ky., for plaintiff-appellee. Before EDWARDS and PECK, Circuit Judges, and CECIL, Senior Circuit Judge. CECIL, Senior Circuit Judge. This is a direct appeal by appellant Walter Cylkouski from his conviction of a crime in the United States District Court for the Eastern District of Kentucky. He and some sixteen others were charged in a seven count indictment with a miscellany of offenses involving gambling. The appellant was named only in counts one, two and seven of the indictment. In a joint trial with other defendants he was acquitted on counts one and two. In a separate, severed trial, before a jury, he was convicted on count seven and sentenced to two years imprisonment. He appeals. Count one of the indictment charged the defendants, including the appellant, with conspiring (Sec. 372, Title 18, U.S.C.) to commit various offenses involving gambling in violation of Sections 1084, 1955, 1952(a)(3) and 1953 of Title 18, U.S.C. Count two charged that various defendants, including appellant did knowingly and wilfully conduct, manage, supervise and direct an illegal gambling business in violation of Kentucky Revised Statutes 436.200, 436.440, 436.450 and 436.490, thus violating Section 1955, Title 18, U.S.C. Count seven of the indictment upon which the appellant was convicted, charged that he, with defendants Joseph Anthony Mark Albers and Charles Burkhart, conspired to obstruct the enforcement of criminal laws of Kentucky, to wit: Kentucky Revised Statutes, Sections 436.200, 436.440, 436.450 and 436.490 with intent to facilitate an illegal gambling business — this in violation of Section 1511, Title 18, U.S.C. The crux of this count, as a charge against the appellant, is that, as a police detective with the City of Newport, Campbell County, in the Eastern District of Kentucky, having knowledge of the alleged gambling business being conducted, allowed it to continue without enforcing the criminal laws of Kentucky. On application of the Government, co-defendants Albers and Burkhart were granted immunity from prosecution and the trial proceeded against the appellant, as a single defendant, on count seven. We consider first whether the trial of the appellant on count seven of the indictment, after being acquitted on counts one and two, constitutes being placed twice in jeopardy for the same offense. “ * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * * ” (Amendment 5, U.S. Constitution) Count one of the indictment charged that the appellant entered into an agreement with others to violate federal laws relative to gambling. Count two of the indictment charged that the appellant and others committed the substantive offenses in violation of the federal gambling laws. In the seventh count of the indictment it is alleged that the appellant entered into an agreement of conspiracy with Joseph Anthony Mark Albers and Charles Burkhart and with others not known to the Grand Jury to obstruct the enforcement of the criminal laws of the Commonwealth of Kentucky— the laws which they were charged with violating in counts one and two. In the first and second counts of the indictment the appellant was a participant in the conspiracy to violate and in the substantive offense of violating the gambling laws in question. In the seventh count his role was to do nothing in a situation where he knew laws which he had a duty to enforce were being violated. The essential element of the seventh count, not present in counts one and two, is that the appellant was a police officer and, as such, had a duty to perform to enforce the gambling laws. Whether he had jurisdiction to function in' the area involved and whether he failed to perform his duties are questions of fact for the jury to determine. Although the evidence adduced at the trial of the seventh count was substantially the same as that introduced in the trial of the first and second counts, the essential element that the appellant was a police officer made the seventh count a separate offense from counts one and two. “Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. See also, United States v. Austin, 529 F.2d 559, 562 (C.A. 6) 1976. We conclude that appellant was not placed twice in jeopardy for the same offense by his trial on count seven of the indictment. We find also that the conspiracy agreements alleged in counts one and seven are not a single agreement. It is claimed on behalf of the appellant that the trial judge erred in refusing the defendant the right to offer character witnesses in his behalf. At the opening of the defense, counsel for defendant said, “The other thing I want to discuss is the plan to put Father Dye on as a character witness and I want to know whether I should put the defendant on first or put the witness on first.” (Emphasis added.) The trial judge replied, “You may put them on anyway you see fit.” Counsel for the Government objected that, under Rule 608 of the new Rules of Evidence, it was not proper to put a character witness on the stand until the character of the witness for truthfulness had been put in issue. After some discussion, counsel for the defendant said, “Well, I would like the record to show that I would offer Father Dye who would testify as to the reputation of this witness for the truth and reputation of the witness.” (Emphasis added.) He said further, “Well, this defendant is charged with a crime and that he ought to have the best things said about him by the best person. The trial judge then said, “Well, I assume when you say that, you are also telling me that you don’t know of any portion of this trial up to this time that puts his character for truthfulness in issue?” Counsel: “That is right.” The court then sustained the objection on the basis that character is not amenable to proof until it is placed in issue. It appears obvious that counsel for the parties as well as the court were confused on the questions of admissibility of evidence of general good character of the defendant and character evidence as to the reputation of a witness for truthfulness. We conclude that counsel for appellant did not clearly state the purpose for which he wished to call Father Dye as a witness. Counsel’s first approach was to ask the court “whether I should put the defendant on first or put the witness on first.” We are of the opinion that it would have been proper for counsel to have offered Father Dye as a witness to testify to the general good character of the defendant before the defendant had testified. Rule 404 of the Federal Rules of Evidence provides, “(a) Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion except: (1) Evidence of a pertinent trait of his character offered by an accused * ” In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 219, 93 L.Ed. 168, the Court said, “But this line of inquiry firmly denied to the State is open to the defendant because character is relevant in resolving probabilities of guilt. [* Note: 1 Wig-more, Evidence (3d ed., 1940) § 56, etc.] He may introduce affirmative testimony that the general estimate of his character is so favorable that the jury may infer that he would not be likely to commit the offense charged. This privilege is sometimes valuable to a defendant for this Court has held that such testimony alone, in some circumstances, may be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed.” If counsel had in mind to offer Father Dye as a witness to testify to the defendant’s reputation for truthfulness, we are of the opinion that the ruling of the trial judge was correct. Rules 608(a) of the Federal Rules of Evidence provides, “The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” We do not find from the record that Father Dye was offered as a witness after the defendant testified. We understand from the colloquy of judge and counsel the judge would have allowed the witness to testify after the defendant’s truthfulness became an issue. The issue here is a highly technical one and we think, if there were error, it would have been cured by Father Dye’s testimony after the defendant had testified. We conclude that the appellant was not denied the right to offer character witnesses and that he was not prejudiced by the court in determining the order in which they should be called. In the brief of counsel for the appellant, he states that, in the first trial a priest and a newspaper reporter testified as to the appellant’s good character but, in the second trial they were not permitted to testify. In the colloquy between counsel and court to which we have referred above, the newspaper reporter was not offered as a witness. We find no merit to the claim that the court erred in overruling appellant’s motions to suppress all evidence and to dismiss the charge in count seven. It was proper to call as witnesses persons who were parties to conversations with the appellant even though the telephone tapes of those conversations had been suppressed. Finally, it is claimed on behalf of the appellant that there was not sufficient evidence to establish a violation of Sec. 1511, Title 18, U.S.C. and that the court erred in denying appellant’s motion for acquittal. The statute, under which the appellant was indicted in count seven, provides: “(a) It shall be unlawful for two or more persons to conspire to obstruct the enforcement of the criminal laws of a State or political subdivision thereof, with the intent to facilitate an illegal gambling business if— (1) one or more of such persons does any act to effect the object of such a conspiracy; (2) one or more of such persons is an official or employee, elected, appointed, or otherwise, of such State or political subdivision; and (3) one or more of such persons conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business. $ * $ It In considering the sufficiency of the evidence on review, this Court considers it in the light most favorable to the Government. The first essential element for the Government to establish is that there was a conspiracy and that the appellant was a member of that conspiracy — the object of the conspiracy being to obstruct the enforcement of the criminal laws of Kentucky with the intent to facilitate an illegal gambling business. Upon consideration of the evidence and the careful instructions of the trial judge defining conspiracy we conclude that there was evidence from which, if believed, the jury could have found that there was a conspiracy, meeting the requirement of the statute. It was undisputed that the appellant was a detective of the City of Newport, Kentucky. It was proven that the appellant and his alleged co-corispirators did the overt acts charged in the indictment in furtherance of the conspiracy. It was further proven that Albers, a co-conspirator conducted, managed, supervised, directed or owned all or part of an illegal gambling operation. Further, in considering all of the evidence, in the light most favorable to the Government, we conclude that the jury could have found from the action and conduct of the appellant that he acted wilfully in becoming a member of the conspiracy and with an intent to facilitate an illegal gambling business. 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:
sc_casesource	100	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. UNITED STATES v. KAHRIGER. No. 167. Argued December 16-17, 1952. Decided March 9, 1953. Robert L. Stern argued the cause for the United States. With him on the brief were Solicitor General Cummings, Assistant Attorney General Murray and Beatrice Rosenberg. Philip B. Perlman, then Solicitor General, was on the Statement as to Jurisdiction. Jacob Kossman argued the cause and filed a brief for appellee. Archie Elledge and Joe W. Johnson filed a brief for Penn et al., as amici curiae, supporting appellee. Mr. Justice Reed delivered the opinion of the Court. The issue raised by this appeal is the constitutionality of the occupational tax provisions of the Revenue Act of 1951, which levy a tax on persons engaged in the business of accepting wagers, and require such persons to register with the Collector of Internal Revenue. The unconstitutionality of the tax is asserted on two grounds. First, it is said that Congress, under the pretense of exercising its power to tax has attempted to penalize illegal intrastate gambling through the regulatory features of the Act (26 U. S. C. (Supp. V) § 3291) and has thus infringed the police power which is reserved to the states. Secondly, it is urged that the registration provisions of the tax violate the privilege against self-incrimination and are arbitrary and vague, contrary to the guarantees of the Fifth Amendment. The case comes here on appeal, in accordance with 18 U. S. C. § 3731, from the United States District Court for the Eastern District of Pennsylvania, where an information was filed against appellee alleging that he was in the business of accepting wagers and that he willfully failed to register for and pay the occupational tax in question. Appellee moved to dismiss on the ground that the sections upon which the information was based were unconstitutional. The District Court sustained the motion on the authority of our opinion in United States v. Constantine, 296 U. S. 287. The court reasoned that while “the subject matter of this legislation so far as revenue purposes is concerned is within the scope of Federal authorities,” the tax was unconstitutional in that the information called for by the registration provisions was “peculiarly applicable to the applicant from the standpoint of law enforcement and vice control,” and therefore the whole of the legislation was an infringement by the Federal Government on the police power reserved to the states by the Tenth Amendment. United States v. Kahriger, 105 F. Supp. 322, 323. The result below is at odds with the position of the seven other district courts which have considered the matter, and, in our opinion, is erroneous. In the term following the Constantine opinion, this Court pointed out in Sonzinsky v. United States, 300 U. S. 506, at 513 (a case involving a tax on a “limited class” of objectionable firearms alleged to be prohibitory in effect and “to disclose unmistakably the legislative purpose to regulate rather than to tax”), that the subject of the tax in Constantine was “described or treated as criminal by the taxing statute.” The tax in the Constantine case was a special additional excise tax of $1,000, placed only on persons who carried on a liquor business in violation of state law. The wagering tax with which we are here concerned applies to all persons engaged in the business of receiving wagers, regardless of whether such activity violates state law. The substance of respondent’s position with respect to the Tenth Amendment is that Congress has chosen to tax a specified business which is not within its power to regulate. The precedents are many upholding taxes similar to this wagering tax as a proper exercise of the federal taxing power. In the License Tax Cases, 5 Wall. 462, the controversy arose out of indictments for selling lottery tickets and retailing liquor in various states without having first obtained and paid for a license under the Internal Revenue Act of Congress. The objecting taxpayers urged that Congress could not constitutionally tax or regulate activities carried on within a state. P. 470. The Court pointed out that Congress had “no power of regulation nor any direct control” (5 Wall., at 470, 471) over the business there involved. The Court said that, if the licenses were to be regarded as by themselves giving authority to carry on the licensed business, it might be impossible to reconcile the granting of them with the Constitution. P. 471. “But it is not necessary to regard these laws as giving such authority. So far as they relate to trade within State limits, they give none, and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for non-payment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and of implying nothing except that the licensee shall be subject to no penalites under national law, if he pays it.” Id., at 471. Appellee would have us say that, because there is legislative history indicating a congressional motive to suppress wagering, this tax is not a proper exercise of such taxing power. In the License Tax Cases, supra, it was admitted that the federal license “discouraged” the activities. The intent to curtail and hinder, as well as tax, was also manifest in the following cases, and in each of them the tax was upheld: Veazie Bank v. Fenno, 8 Wall. 533 (tax on paper money issued by state banks); McCray v. United States, 195 U. S. 27, 59 (tax on colored oleomargarine); United States v. Doremus, 249 U. S. 86, and Nigro v. United States, 276 U. S. 332 (tax on narcotics); Sonzinsky v. United States, 300 U. S. 506 (tax on firearms); United States v. Sanchez, 340 U. S. 42 (tax on marihuana). It is conceded that a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is negligible. Appellee, however, argues that the sole purpose of the statute is to penalize only illegal gambling in the states through the guise of a tax measure. As with the above excise taxes which we have held to be valid, the instant tax has a regulatory effect. But regardless of its regulatory effect, the wagering tax produces revenue. As such it surpasses both the narcotics and firearms taxes which we have found valid. It is axiomatic that the power of Congress to tax is extensive and sometimes falls with crushing effect on businesses deemed unessential or inimical to the public welfare, or where, as in dealings with narcotics, the collection of the tax also is difficult. As is well known, the constitutional restraints on taxing are few. “Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity.” License Tax Cases, supra, at 471. The remedy for excessive taxation is in the hands of Congress, not the courts. Veazie Bank v. Fenno, 8 Wall. 533, 548. Speaking of the creation of the Bank of the United States, as an instrument for carrying out federal fiscal policies, this Court said in McCulloch v. Maryland, 4 Wheat. 316, 423: “Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution ; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.” The difficulty of saying when the power to lay uniform taxes is curtailed, because its use brings a result beyond the direct legislative power of Congress, has given rise to diverse decisions. In that area of abstract ideas, a final definition of the line between state and federal power has baffled judges and legislators. While the Court has never questioned the above-quoted statement of Mr. Chief Justice Marshall in the McCulloch case, the application of the rule has brought varying holdings on constitutionality. Where federal legislation has rested on other congressional powers, such as the Necessary and Proper Clause or the Commerce Clause, this Court has generally sustained the statutes, despite their effect on matters ordinarily considered state concern. When federal power to regulate is found, its exercise is a matter for Congress. Where Congress has employed the taxing clause a greater variation in the decisions has resulted. The division in this Court has been more acute. Without any specific differentiation between the power to tax and other federal powers, the indirect results from the exercise of the power to tax have raised more doubts. This is strikingly illustrated by the shifting course of adjudication in taxation of the handling of narcotics. The tax ground in the Veazie Bank case, supra, recognized that strictly state governmental activities, such as the right to pass laws, were beyond the federal taxing power. That case allowed a tax, however, that obliterated from circulation all state bank notes. A reason was that “the judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers.” Id., at 548. The tax cases cited above in the third preceding paragraph followed that theory. It is hard to understand why the power to tax should raise more doubts because of indirect effects than other federal powers. Penalty provisions in tax statutes added for breach of a regulation concerning activities in themselves subject only to state regulation have caused this Court to declare the enactments invalid. Unless there are provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power. All the provisions of this excise are adapted to the collection of a valid tax. Nor do we find the registration requirements of the wagering tax offensive. All that is required is the filing of names, addresses, and places of business. This is quite general in tax returns. Such data are directly and intimately related to the collection of the tax and are "obviously supportable as in aid of a revenue purpose.” Sonzinsky v. United States, 300 U. S. 506, at 513. The registration provisions make the tax simpler to collect. Appellee’s second assertion is that the wagering tax is unconstitutional because it is a denial of the privilege against self-incrimination as guaranteed by the Fifth Amendment. Since appellee failed to register for the wagering tax, it is difficult to see how he can now claim the privilege even assuming that the disclosure of violations of law is called for. In United States v. Sullivan, 274 U. S. 259, defendant was convicted of refusing to file an income tax return. It was assumed that his income “was derived from business in violation of the National Prohibition Act.” Id., at 263. “As the defendant’s income was taxed, the statute of course required a return. See United States v. Sischo, 262 U. S. 165. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” 274 U. S., at 263. ' Assuming that respondent can raise the self-incrimination issue, that privilege has relation only to past acts, not to future acts that may or may not be committed. 8 Wigmore (3d ed., 1940) § 2259c. If respondent wishes to take wagers subject to excise taxes under § 3285, supra, he must pay an occupational tax and register. Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that in order to engage in the business of wagering in the future he must fulfill certain conditions. Finally, we consider respondent’s contention that the order of dismissal was correct because a conviction under the sections in question would violate the Due Process Clause because the classification is arbitrary and the statutory definitions are vague. The applicable definitions are 26 U. S. C. (Supp. V) § 3285 (b), (d) and (e). The arbitrariness is said to arise from discrimination because some wagering activities are excluded. The Constitution does not require that a tax statute cover all phases of a taxed or licensed business. Respondent predicates vagueness of the statute upon the use, in defining the subject of the tax, of the description “engaged in the business” of wagering and “usually” in § 3285 (b)(2). We have no doubt the definitions make clear the activities covered and excluded. Reversed. 26 TJ.S.C. (Supp. V) § 3285: “(a) Wagers. “There shall be imposed on wagers, as defined in subsection (b), an excise tax equal to 10 per centum of the amount thereof. “ (d) Persons liable for tax. “Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this subchapter on all wagers placed in such pool or lottery. “(e) Exclusions from tax. “No tax shall be imposed by this subchapter (1) on any wager placed with, or on any wager placed in a wagering pool conducted by, a parimutuel wagering enterprise licensed under State law, and. (2) on any wager placed in a coin-operated device with respect to which an occupational tax is imposed by section 3267.” 26 U.S.C. (Supp. V) § 3290: “A special tax of $50 per year shall be paid by each person who is liable for tax under subchapter A or who is engaged in receiving wagers for or on behalf of any person so liable.” 26 U.S. C. (Supp. V) § 3291: “ (a) Each person required to pay a special tax under this subchapter shall register with the collector of the district— “ (1) his name and place of residence; “(2) if he is liable for tax under subchapter A, each place of business where the activity which makes him so liable is carried on, and the name and place of residence of each person who is engaged in receiving wagers for him or on his behalf; and "(3) if he is engaged in receiving wagers for or on behalf of any person liable for tax under subchapter A, the name and place of residence of each such person.” 26 U. S. C. (Supp. V) § 3294: “(a) Failure to pay tax. “Any person who does any act which makes him liable for special tax under this subchapter, without having paid such tax, shall, besides being liable to the payment of the tax, be fined not less than $1,000 and not more than $5,000. “(c) Willful violations. “The penalties prescribed by section 2707 with respect to the tax imposed by section 2700 shall apply with respect to the tax imposed by this subchapter.” United States v. Smith, 106 F. Supp. 9 (D. C. S. D. Cal.); United States v. Nadler, 105 F. Supp. 918 (D. C. N. D. Cal.); United States v. Forrester, 105 F. Supp. 136 (D. C. N. D. Ga.); United States v. Robinson, 107 F. Supp. 38 (D. C. E. D. Mich.); United States v. Arnold, Jordan, and Wingate, No. 478 (D. C. E. D. Va.), September 18, 1952; United States v. Penn, No. 2021 (D. C. M. D. N. C.), May 1952; Combs v. Snyder, 101 F. Supp. 531 (D. D. C.), affirmed, 342 U. S. 939. There are suggestions in the debates that Congress sought to hinder, if not prevent, the type of gambling taxed. See 97 Cong. Rec. 6892: “Mr. HOFFMAN of Michigan. Then I will renew my observation that it might if properly construed be considered an additional penalty on the illegal activities. “Mr. COOPER. Certainly, and we might indulge the hope that the imposition of this type of tax would eliminate that kind of activity.” 97 Cong. Rec. 12236: “If the local official does not want to enforce the law and no one catches him winking at the law, he may keep on winking at it, but when the Federal Government identifies a law violator, and the local newspaper gets hold of it, and the local church organizations get hold of it, and the people who do want the law enforced get hold of it, they say, ‘Mr. Sheriff, what about it? We understand that there is a place down here licensed to sell liquor.’ He says, ‘Is that so ? I will put him out of business.’ ” One of the indicia which appellee offers to support his contention that the wagering tax is not a proper revenue measure is that the tax amount collected under it was $4,371,869, as compared with an expected amount of $400,000,000 a year. The figure of $4,371,869, however, is relatively large when it is compared with the $3,501 collected under the tax on adulterated and process or renovated butter and filled cheese, the $914,910 collected under the tax on narcotics, including marihuana and special taxes, and the $28,911 collected under the tax on firearms, transfer and occupational taxes. (Summary of Internal Revenue Collections, released by Bureau of Internal Revenue, October 3, 1952.) But see the argument for defendant in the Child Labor Tax Case, 259 U. S. 20, 30. McCulloch v. Maryland, 4 Wheat. 316, 424, upheld the creation of a bank under the necessary and proper clause. Veazie Bank v. Fenno, 8 Wall. 533, 548, depends partly on the alternate ground of the federal power to provide money for circulation. In re Rapier, 143 U. S. 110, the use of the mails by papers that advertised the Louisiana Lottery was barred. The Lottery Case, 188 U. S. 321, approved the same result through the commerce power. That power was enough to bar transportation of pictures of prize fights, Weber v. Freed, 239 U. S. 325; to seize contraband eggs after shipment had ended, Hipolite Egg Co. v. United States, 220 U. S. 45, 56; and to bar transportation of women for immoral purposes, Caminetti v. United States, 242 U. S. 470. While in United States v. Butler, 297 U. S. 1, 68, 73, a use of a tax for regulation was disapproved, an enactment that resulted in regulation under the Commerce Clause met judicial favor. Mulford v. Smith, 307 U. S. 38, 47; Wickard v. Filburn, 317 U. S. 111. Hill v. Wallace, 259 U. S. 44, 67, and Trusler v. Crooks, 269 U. S. 475, based on taxation, held taxes that regulated the grain markets were unconstitutional as an interference with state power. In Chicago Board of Trade v. Olsen, 262 U. S. 1, regulations based on the Commerce Clause were upheld. The departure from this line of decisions in Hammer v. Dagenhart, 247 U. S. 251, was reversed in United States v. Darby, 312 U. S. 100, 115-124, where we said: “Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.” Id., at 115. “The power of Congress over interstate commerce ... extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce.” Id., at 118. United States v. Jin Fuey Moy, 241 U. S. 394, 402; United States v. Doremus, 249 U. S. 86; Linder v. United States, 268 U. S. 5; Nigro v. United States, 276 U. S. 332. Cf. New York v. United States, 326 U. S. 572, 582, 587-588. Cf. McCulloch v. Maryland, 4 Wheat., at 422. Child Labor Tax Case, 259 U. S. 20, 34, 38; Hill v. Wallace, 259 U. S. 44, 63, 70; United States v. Constantine, 296 U. S. 287. But see Linder v. United States, 268 U. S. 5, 18; Trusler v. Crooks, 269 U. S. 475. 26 U. S. C. § 2011 et seq., require registration by tobacco manufacturers, dealers and peddlers of Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. 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 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. SMITH v. OHIO No. 89-5999. Decided March 5, 1990 Per Curiam. This case raises the single question whether a warrantless search that provides probable cause for an arrest can nonetheless be justified as an incident of that arrest. A divided Ohio Supreme Court answered that question in the affirmative, reasoning that the search was neither remote in time nor place from the arrest. We disagree. On a June evening, as petitioner and a companion exited a private residence and entered the parking lot of a YMCA, they were approached by two plainclothes officers of the Ash-land, Ohio, Police Department. The officers were driving-in an unmarked police vehicle. Petitioner was carrying a brown paper grocery bag with the words “Kash ’n Karry” and “Loaded with Low Prices” printed on the outside in a manner that the officers later described as “gingerly.” Neither officer knew petitioner or his companion. One of the two officers, Officer Thomas, exited the vehicle and, without identifying himself, asked petitioner to “‘come here a minute.’” 45 Ohio St. 3d 255, 256, 544 N. E. 2d 239, 240 (1989). Petitioner did not respond and kept walking. When Officer Thomas identified himself as a police officer, petitioner “threw the sack he was carrying onto the hood of [his] car and turned to face Thomas who was approaching.” Ibid. Officer Thomas asked petitioner what the bag contained; petitioner did not respond; Officer Thomas then rebuffed petitioner’s attempt to protect the bag, pushed petitioner’s hand away, and opened the bag. The drug paraphernalia discovered within provided probable cause for the arrest and evidence sufficient to support petitioner’s conviction for drug abuse. No contention has been raised in this case that the officer’s reaching for the bag involved a self-protective action necessary for the officer’s safety. See Terry v. Ohio, 392 U. S. 1 (1968). Although the Fourth Amendment may permit a brief detention of property on the basis of only “reasonable, articulable suspicion” that it contains contraband or evidence of criminal activity, United States v. Place, 462 U. S. 696, 702 (1983), it proscribes — except in certain well-defined circumstances — the search of that property unless accomplished pursuant to judicial warrant issued upon probable cause. See, e. g., Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989); Mincey v. Arizona, 437 U. S. 385, 390 (1978); Katz v. United States, 389 U. S. 347, 357 (1967). That guarantee protects alike the “traveler who carries a toothbrush and a few articles of clothing in a paper bag” and “the sophisticated executive with the locked attaché case.” United States v. Ross, 456 U. S. 798, 822 (1982). The Ohio Supreme Court upheld the warrantless search of petitioner’s bag under the exception for searches incident to arrest. See United States v. Chadwick, 433 U. S. 1, 14-15 (1977); Chimel v. California, 395 U. S. 752, 763 (1969). The court stated that petitioner was not arrested until after the contraband was discovered in the search of the bag. 45 Ohio St. 3d, at 257, 258, 544 N. E. 2d, at 241, 242. It nonetheless held that the search was constitutional because its fruits justified the arrest that followed. That reasoning, however, “justifying] the arrest by the search and at the same time . . . the search by the arrest,” just “will not do.” Johnson v. United States, 333 U. S. 10, 16-17 (1948). As we have had occasion in the past to observe, “[i]t is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Sibron v. New York, 392 U. S. 40, 63 (1968); see also Henry v. United States, 361 U. S. 98, 102 (1959); Rawlings v. Kentucky, 448 U. S. 98, 111, n. 6 (1980). The exception for searches incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control. Contrary to the Ohio Supreme Court’s reasoning, it does not permit the police to search any citizen without a warrant or probable cause so long as an arrest immediately follows. The State does not defend the reasoning of the Ohio Supreme Court, but rather contends that petitioner abandoned the bag when he threw it on his car and turned to face Officer Thomas. See Abel v. United States, 362 U. S. 217, 241 (1960); Hester v. United States, 265 U. S. 57, 58 (1924). That argument was unanimously rejected by the Ohio Supreme Court, 45 Ohio St. 3d, at 263, n. 6, 544 N. E. 2d, at 246, n. 6; id., at 266, 544 N. E. 2d, at 249 (Sweeney, J., dissenting); id., at 273-274, 544 N. E. 2d, at 255, n. 10 (Wright, J., dissenting), and we have no reason to disturb its conclusion. As the state court properly recognized, a citizen who attempts to protect his private property from inspection, after throwing it on a car to respond to a police officer’s inquiry, clearly has not abandoned that property. Cf. Rios v. United States, 364 U. S. 253, 262, n. 6 (1960). The motion for leave to proceed informa pauperis and the petition for writ of certiorari are granted, and the judgment of the Supreme Court of Ohio is Reversed. 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_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Anthony VOCCIO and Domenic Voccio, Plaintiffs, Appellants, v. RELIANCE INSURANCE COMPANIES, et al., Defendants, Appellees. Anthony VOCCIO and Domenic Voccio, Plaintiffs, Appellees, v. RELIANCE INSURANCE COMPANIES, et al., Defendants, Appellants. Nos. 82-1625, 82-1719. United States Court of Appeals, First Circuit. Argued Feb. 4, 1983. Decided March 24, 1983. Joseph G. Miller, Providence, R.I., with whom William T. Murphy, and Joseph G. Miller, Ltd., Providence, R.I., was on brief, for Anthony Voccio and Domenic Voccio. Peter Lawson Kennedy, Providence, R.I., with whom Adler Pollock & Sheehan Incorporated, Providence, R.I., was on brief, for Reliance Insurance Companies, et al. Before ALDRICH and BREYER, Circuit Judges, and ZOBEL, District Judge. Of the District of Massachusetts, sitting by designation. BREYER, Circuit Judge. This case arises out of a serious auto accident that took place more than ten years ago. William Lopes, Jr., driving his mother Anna Lopes’ car, lost control of the car and hit two pedestrians, Mary Petrarca and Anthony Voccio. Petrarca, a fifty-eight year old housewife, died about eleven minutes after being hit. Voccio, an eleven year old child, lost the lower part of both his legs. The Lopeses were nearly judgment-proof and carried liability insurance of only $25,000. The insurance company, Reliance, settled with Mrs. Petrarca’s husband for half of the policy amount, $12,500. Anthony Voccio and his father refused to accept the other half and sued the Lopeses. Although they won a verdict for several hundred thousand dollars, the Lopeses could not pay. The Voccios then promised not to try to collect the judgment. In return, the Lopeses assigned to the Voccios whatever claim they might have against Reliance for “bad faith” in carrying out the settlement negotiations. The Voccios, standing in the Lopeses’ shoes, sued Reliance in Rhode Island state court. Reliance removed the case to federal court on grounds of diversity. The jury in the federal court found that Reliance’s “bad faith” had led to the large excess judgment against the Lopeses and would have required Reliance to pay this excess to the Voccios. The district judge, however, granted Reliance a judgment n.o.v. The judge held that no reasonable juror could have believed that Reliance’s actions demonstrated any “bad faith” that in turn led to the excess judgment. What we have before us is, in essence, the Voccios’ appeal from this district court determination. In principle, this case might raise a number of interesting and difficult issues of Rhode Island law. .Does that law permit the Lopeses to assign their claim against Reliance to the Voccios? See, e.g., Moutsopoulos v. American Mutual Insurance Co. of Boston, 607 F.2d 1185, 1189-90 (7th Cir. 1979) (Wis. law: assignment allowed); Dillingham v. Tri-State Insurance Co., 214 Tenn. 592, 381 S.W.2d 914 (1964) (assignment prohibited); Annot., 12 A.L.R.3d 1158 (1967). Did the excess judgment against the Lopeses damage them? They were nearly judgment-proof and the Voccios promised not to execute the judgment. Were they harmed in the amount of the several hundred thousand dollars that the Voccios seek from the insurance companies? See, e.g., 7C J. Appleman, Insurance Law and Practice § 4711 at 417-19 (W. Berdal rev. 1979); Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv.L. Rev. 1136, 1173-82 (1954); Annot., 63 A.L.R.3d 627 (1975). We need not consider these questions, however, nor certify them to the Rhode Island Supreme Court, see Smith v. Cumberland School Committee, R.I., 415 A.2d 168 (1980), for even assuming answers favorable to the Voccios, we believe the district court’s award of judgment n.o.v. was proper. In order to prevail the Voccios must at least show that: 1) the insurance company’s “bad faith’’ in settling the Petrarca and Voccio claims, 2) caused the excess judgment. See Bibeault v. Hanover Insurance Co., R.I., 417 A.2d 313, 319 (1980). As a matter of law, on the basis of this record, we doubt that the Voccios could prevail as to the first of these matters. We are certain they cannot prevail as to the second. “Bad faith” is not easily defined. Yet we know that it involves behavior worse than simple negligence. See Brown v. United States Fidelity and Guaranty Co., 314 F.2d 675, 679-80 (2d Cir.1963). In Rhode Island it seems to require some form of “reckless” behavior, such as a “reckless indifference to facts” or “a lack of a reasonable basis” for the carrier’s decision. Bibeault v. Hanover Insurance Co., 417 A.2d at 319. As stated strongly, the duty to negotiate in good faith would require the carrier to give “the interest of the insured” consideration “equal to that consideration given its own interest,” Liberty Mutual Insurance Co. v. Davis, 412 F.2d 475, 483 (5th Cir.1969), or “to treat the claim as if it were alone liable for the entire amount.” Bell v. Commercial Insurance Co. of Newark, 280 F.2d 514, 515 (3d Cir.1960); see Brown v. United States Fidelity and Guaranty Co., 314 F.2d at 678; Keeton, supra, at 1148. Most “bad faith” cases involve an insurance company’s refusal to accept an offer of settlement within the available policy limits — a state of affairs (unlike this one) where the interests of the carrier and insured are clearly opposed. See, e.g., Luke v. American Family Mutual Insurance Co., 476 F.2d 1015 (8th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973); Peterson v. Allcity Insurance Co., 472 F.2d 71 (2d Cir.1972); Herges v. Western Casualty and Surety Co., 408 F.2d 1157 (8th Cir.1969); State Farm Mutual Automobile Insurance Co. v. Brewer, 406 F.2d 610 (9th Cir.1968). Only occasionally has liability been found where the conflict of interest has been less apparent; and in such cases the evidence of reckless behavior is strong. See Brown v. United States Fidelity and Guaranty Co., 314 F.2d at 682. We doubt that a reasonable jury, unswayed by sympathy for the Voccios, could have found any relevant “bad faith” here. The evidence, viewed most favorably to plaintiffs, see Ramos Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir.1978), suggests that Reliance’s investigation of the Petrarca claim and its efforts to keep the Lopeses informed about settlement negotiations left something to be desired. Cf. 7C J. Appleman, supra, at §§ 4711 at 370-72, 4712 at 480; 14 G. Couch, Cyclopedia of Insurance Law § 51:145 (2d ed. 1982). But even if a jury might have found such conduct to be negligent or even “reckless” viewed alone, here the conduct is relevant only insofar as it led the carrier to pay $12,500 to the Petrarcas (and leave only $12,500 for the Voccios). At bottom, the Voccios must show that this 50-50 division of the insurance policy proceeds was highly unreasonable, reckless or in “bad faith” — an exceedingly difficult task. For one thing, the carrier met together with counsel for both Petrarca and the Voccios and sought suggestions on how to divide the money — a course recommended in Farmers Insurance Exchange v. Schropp, 222 Kan. 612, 567 P.2d 1359, 1367 (1977). For another thing, unlike the claimant in Brown, the Voccios did not agree to participate in an equitable division of the policy proceeds. In fact, the Voccios consistently refused to make any offer of settlement below the policy limits. These facts make more reasonable the carrier’s decision to give Mr. Petrarca half of the amount. Furthermore, Mr. Petrarca’s claim was substantial. His wife had been killed; she was conscious for a time before death (and thus may have suffered); she was a housewife for the loss of whose services a husband can be compensated under Rhode Island law. See Burns v. Brightman, 44 R.I. 316, 117 A. 26 (1922). Moreover, Mr. Petrarca was willing to settle while the Voccios were not. Judicial decisions have consistently allowed insurers to settle on the basis of “first come, first served.” See, e.g., Standard Accident Insurance Co. of Detroit v. Winget, 197 F.2d 97, 104 (9th Cir.1952); Bartlett v. Travelers’ Insurance Co., 117 Conn. 147, 167 A. 180 (1933); Bennett v. Conrady, 180 Kan. 485, 305 P.2d 823 (1957); Bruyette v. Sandini, 291 Mass. 373, 197 N.E. 29 (1935); Liguori v. Allstate Insurance Co., 76 N.J.Super. 204, 184 A.2d 12 (Ch. 1962); Alford v. Textile Insurance Co., 248 N.C. 224, 103 S.E.2d 8 (1958); Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L. Rev. 27, 37-38 (1956); Comment, Pro-rating Automobile Liability Insurance to Multiple Claimants, 32 U.Chi.L.Rev. 337, 337 (1965). Indeed, had the carrier refused to settle with Petrarca, the Lopeses might well have been faced with two suits rather than one, or with a suit by Petrarca instead of Voccio. Under these circumstances, it is difficult to see how splitting the insurance proceeds and settling Mr. Petrarca’s claim for $12,-500 could constitute “bad faith.” We need not definitively hold that no “bad faith” exists, however, for we agree with the district court that whatever “bad faith” there may have been did not bring about the “excess” judgment. The crucial difference between this case and the Brown case (on which the Voccios rely) is the absence of any evidence suggesting that a “good faith” settlement with Mr. Petrarca would have led to a different outcome. There is no reason to believe that further investigations of the Petrarca claim or greater efforts to keep the Lopeses informed would have brought about a settlement with the Voccios. Indeed, the Lopes-es’ counsel initially appears to have been pleased with the settlement, and to have expressed no discontent until 1977, several years after the settlement took place. The Voccios’ strongest argument is that a 50-50 split was unreasonable in light of Mrs. Petrarca’s age and Anthony Voceio’s youth. Yet, the reasonableness of the carrier’s belief that Mr. Petrarca’s claim was worth more than $12,500 cannot be questioned. As previously mentioned, the carrier knew Mrs. Petrarca was fifty-eight years old, that she was conscious before death, and that compensation is payable for the loss of a housewife’s services in Rhode Island. That Mr. Petrarca might have had to submit additional evidence of the value of those services in a “wrongful death” action, R.I.Gen.Laws § 10-7-1.1; see Pray v. Narragansett Improvement Co., R.I., 434 A.2d 923, 929 (1981); Taft v. Cerwonka, R.I., 433 A.2d 215, 219-20 (1981); Wiesel v. Cicerone, 106 R.I. 595, 261 A.2d 889, 891-92 (1970); Burns v. Brightman, 117 A. at 29, is beside the point, for here the issue is the carrier’s “state of mind.” And, as to that, it was reasonable for the carrier to infer from these facts that Mr. Petrarca had a claim significantly exceeding the policy limit. Indeed, the only evidence specifically valuing the Petrarcas’ claim in the court below put its value at over $75,000. The Voccios’ argument that the 50-50 split was improper rests on the claim that the split was inequitable as between the Voccios and Petrarca, not on a claim that Reliance breached a duty to the Lopeses. Yet, even if we evaluated the settlement from the standpoint of such equities, we would affirm the district court. That is to say, we do not see how anyone could find Reliance to be in “bad faith” for paying significantly more than $5,000 — say, $10,000 to Petrarca. But even if Petrarca had been willing to settle for $10,000, there is no evidence in the record that the Voccios would have settled for $15,000. Indeed, there is considerable evidence to the contrary, for the Voccios refused to mention any settlement figure within the policy limits up to the time of the personal injury trial, and at that time they still insisted on the full $25,000. Even if William, Jr. and Anna Lopes were to have contributed their personal assets to the settlement, the Voccios do not argue that they could have contributed more than $6,000. In sum, we do not see how a jury could have concluded that an extra $2,500 or so from Reliance could have led to settlement, nor do we see how a jury could have concluded that the utmost “good faith” on the part of the carrier would have produced more than an additional $2,500. For these reasons, the judgment of the district court is Affirmed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_1_4	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. CADICK MILLING CO. v. HAUCK MILLING CO. Court of Appeals of District of Columbia. Submitted March 16, 1927. Decided April 4, 1927. No. 1934. Trade-marks and trade-names and unfair competition <©=>93(3) — Unsupported testimony, of two> men regarding events occurring more than 60 years previously held insufficient to establish priority in use of trade-mark. Unsupported! testimony of two old men as to events occurring more than 60 years previously held insufficient to establish priority in use of word “Snowflake” as trade-mark for flour. Appeal from Decision of Commissioner of Patents. Trade-mark interference proceeding between the Cadick Milling Company and the Hauek Milling Company. From a decision of the Commissioner of Patents, awarding priority to the latter, the former appeals. Affirmed. Jas. Atkins, of Washington, D. C., for appellant. H. A. Toulmin and H. A. Toulmin, Jr., both of Dayton, Ohio, for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. ROBB, Associate Justice. Appeal from a decision of the Commissioner of Patents in a trade-mark interference proceeding, awarding priority of adoption and use of the word “Snowflake,” as a trade-mark for wheat flour, to the Hauek Milling Company, appellee here. The Hauek Milling Company has conclusively established adoption and use of this mark since 1866. Supplementing the oral testimony, it produced contemporaneous documentary evidence of a convincing character. This documentary evidence, which includes a sales book kept when the business was founded by appellee’s predecessor in title, is not challenged. Appellant relies solely upon the testimony of two witnesses to establish an earlier date of adoption and use of this mark. One of these witnesses, about 90 years of age when he testified, stated that he was bom and always lived at Grandview, Ind., and remembered the erection of a flour mill there by a Mr. Wilbem. Asked when that was, he replied : “I think it was in 1858; possibly about that time.” He had never worked in the mill. He then was asked what kinds of flour the mill sold, and stated: “Well, I used the flour. I bought what they called Snow Flake put up in cotton sacks, mostly in barrels. Before that they retailed in cotton sacks here in the country, 50 pounds to a sack.” He was also asked, “When did you begin to buy this flour?” and his answer was: “Soon as they made it. I couldn’t give any date. I think in the fall of ’58.' I couldn’t give the day of the month.” He subsequently stated that the mill was run by Mr. Wilbem until his death. Asked when that was, he replied: “That was in 1882 or ’83. I don’t remember the date.” On cross-examination, he again was asked whether the mill made any other brands of flour, and answered: “I think they did, but I can’t remember, for I didn’t use it.” Appellant’s other witness, Henry Riley, was 70 years of age when he testified, and also a resident of Grandview, having moved there in 1860. He testified that he went to work in the Wilbem mill in 1864, and that the mill then was making several brands of flour, including . “Snow Flake.” He was connected with the mill until 1883, the date when he thought the sale to Cadick took place. Appellant introduced documentary evidence of sales from 1900 to the date when the testimony was. taken, but there was no attempt either to introduce such evidence as to sales prior to that date or to account for the failure to do so. The evidence shows that the original mill was standing, and that, for aught that appeared, the original Wilbern books were in existence and available. We agree with the Commissioner that the unsupported testimony of these two old men, as to events occurring more than 60 years previously, is not sufficient to establish priority. Gaines & Co. v. Rock Spring Distilling Co. (C. C. A.) 226 F. 531, 544; American Stove Co. v. Detroit Stove Works, 31 App. D. C. 304; Barbed Wire Patent Case, 143 U. S. 275, 12 S. Ct. 443, 450, 36 L. Ed. 154; Eibel Co. v. Paper Co., 261 U. S. 45, 60, 43 S. Ct. 322, 67 L. Ed. 523. In the Gaines Case,, the court said of the testimony of witnesses as to prior use of the mark involved: “There is considerable volume of this testimony, but it consists almost wholly of unaided recollections of dates 40 years old, and it is that class of testimony which, by decisions familiar in patent cases, the Supreme Court has refused to accept. True, there is in a, trade-mark case no initial presumption of validity to be overcome; but the principles for determining the evidential value of testimony cannot differ according to the subject-matter of the case.” The decision is right and is affirmed. Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_appel1_1_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". W. James BROWN, an attorney on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Frank J. McGARR, Chief Judge of the United States District Court for the Northern District of Illinois, et al., Defendants-Appellees. No. 84-1591. United States Court of Appeals, Seventh Circuit. Argued Feb. 12, 1985. Decided Oct. 3, 1985. Rehearing and Rehearing In Banc Denied Oct. 31, 1985. Edward T. Garney, Chicago, Ill., for plaintiff-appellant. Nancy K. Needles, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees. Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. COFFEY, Circuit Judge. The plaintiff, James Brown, appeals the district court’s holding that the Northern District of Illinois’ adoption of rules creating a trial bar to improve advocacy in the federal courts and to supervise the practice of law did not deprive him of property without due process of law. We Affirm. I The district court made the following findings of fact when granting the defendants’ summary judgment motion and they are not in dispute. As part of a study of the competency of trial lawyers practicing in the federal counts, the Devitt Committee, appointed by Chief Justice Burger, surveyed the legal community and held public hearings around the country. The Devitt Committee published two reports of its findings and, in both reports, recommended, inter alia, that federal district courts impose a rule requiring attorneys to have trial experience before being allowed to appear alone in trials. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations as part of a pilot program to improve the quality of advocacy in the federal courts. The Austin Committee published the proposed rules in the Chicago Law Bulletin and the Chicago Bar Record and held a public meeting on the proposed rules. On July 12,1982, after this extensive period of public examination and comment, the District Court for the Northern District of Illinois adopted rules requiring attorneys to belong to a “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case. The requirement of membership in the trial bar applies both to new admittees and to attorneys previously admitted to the bar of the Northern District of Illinois. In order to practice before the court as a member of the trial bar, an attorney must have four “qualifying units” of trial-type experience. N.D.Ill. General R. 3.00C(7). An attorney may receive a qualifying unit for participating as lead or as co-counsel at a trial, observing a trial in which a member of the trial bar supervises the observation, or participating in an approved trial advocacy course. Id. at C. At least two of the four qualifying units must be obtained by participating in actual trials as lead or as co-counsel. Id. at C(7). The court may, in exceptional circumstances, waive the trial bar membership requirement if the client consents to representation by a non-member. Id. at 3.10D. Prior to the adoption of the rules creating the trial bar, any member in good standing of the Northern District of Illinois Bar could appear alone in any proceeding. The plaintiff, James Brown, was admitted to the bar of the Northern District of Illinois in 1977 but does not possess a sufficient amount of trial experience to be eligible for trial bar membership. After the rules were adopted, the plaintiff filed suit as a representative of a class of attorneys deprived of the right to appear in all proceedings without assistance, alleging that the rules of the Northern District of Illinois violated the Fifth Amendment prohibition against deprivation of property without due process of law. Because the subject matter of the complaint involved rules adopted by the Judges of the Northern District of Illinois, the case was reassigned to Senior Judge Myron L. Gordon of the Eastern District of Wisconsin. Judge Gordon held, 583 F.Supp. 734, in ruling on the defendants’ motion for summary judgment, that the rules violated neither the plaintiffs’ rights to substantive nor to procedural due process. II Brown asserts that the creation of the Federal Trial Bar of the Northern District of Illinois, in effect, disbarred him and that he had a due process right to “notice calculated to convey information regarding his disbarment pursuant to the adoption of the rules and an opportunity to defend against such action.” Brown also argues that neither the district court’s power to specify bar admission standards, nor its power to disbar attorneys for “deceit, malpractice, or other gross misconduct,” nor its power to make or amend rules authorize the court to deny an attorney his “vested right to practice law” (“a property right in his law license”) without affording the attorney “his due process rights to a hearing, to present evidence, to cross examine adverse witnesses, and to know upon what basis the defendants determined that they and other individuals of the class were not qualified to be trial attorneys.” Moreover, the plaintiff contends that not only the district court but also Congress lacked the authority to promulgate the rules creating the trial bar because the class’ “previously granted licenses to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited.” Finally, the plaintiff asserts that, even if the district court’s adoption of the rules involves a “basically legislative-type judgment,” our court should not apply the rule that “the fifth amendment’s requirements of individualized due process do not apply in the area of rulemaking.” A. Adoption of the Rules was not a Disbarment Proceeding By arguing that adoption of the trial bar membership rule in effect disbarred him for incompetence, Brown raises the issue of whether the imposition of the trial bar membership requirement was a proper exercise of the district court’s rule-making power or was an improper adjudication of his competence as an attorney. To determine whether an action was rule-making or adjudication, courts consider: (1) whether the action is generalized in nature, i.e., whether the action applies to specific individuals or to unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues or resolves a specific dispute between particular parties. See United States v. Florida E. Coast R.R. Co., 410 U.S. 224, 244-46, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973). “Disbarment ... is a punishment or penalty imposed on the lawyer.” Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968). A court conducting a disbarment proceeding must determine for itself the facts of the attorney’s conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1276, 1 L.Ed.2d 1342 (1957). Thus, the ultimate result of a disbarment proceeding is a finding, based upon the conduct and actions of an individual attorney, that the individual attorney is unfit. Unlike a disbarment proceeding focused upon specific incidents of misconduct by an individual attorney, the district court’s trial bar rules were adopted in response to fact finding that was not focused on individual attorneys. The trial bar rules of the Northern District of Illinois are part of a pilot program implementing suggestions to improve advocacy in the federal courts advanced by the Committee to Consider Standards for Admission to Practice in the Federal Courts (“Devitt Committee”). The Devitt Committee, a national committee appointed by Chief Justice Burger in 1976 to study advocacy of representation problems in the federal courts, surveyed 1,500 law related organizations, solicited the comments of the legal community, and held public hearings on, inter alia, causes of any perceived inadequacies of representation. Report and Tentative Recommendations of the Committee to Consider Standards of Admission to Practice in the Federal Courts to the Judicial Conference of the United States, 79 F.R.D. 187, 193 (1978). Additionally, the Federal Judicial Center simultaneously conducted a series of research projects designed to gather information about the level of performance of advocates in the federal courts. Id. Based upon the comments received by the Devitt Committee and the results of the Federal Judicial Center studies, the Devitt Committee concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” Id. at 196-97. The experience requirement was recommended “to insure a substantial probability of adequate trial performances.” Id. at 196-98. Thus, the trial bar membership requirement was not designed to infallibly identify competent attorneys; rather, the provision was adopted as a method of improving the standard of advocacy in the district courts by requiring the attorneys to present evidence to the court of training in trial advocacy— i.e., the qualifying units. We hold that the finding of a correlation between trial experience and competence as a trial attorney, upon which the trial bar membership rule is based, is generalized fact finding, was not focused upon the competence of an individual attorney, and was legislative in nature. We also hold that the experience requirement is a determination of a policy issue rather than a resolution of a specific dispute between particular parties. Specifically, the trial bar membership requirement was adopted to prevent problems caused by inexperienced trial counsel such as, “ ‘Piper Cub’ advocates trying to handle the controls of ‘Boeing 747’ litigation,” and “on-the-job-training” at the expense of the client. Burger, The Specialized Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L.Rev. 227, 231, 233 (1973). “Whatever the legal issues or claims, the indispensable element in the trial of a case is a minimally adequate advocate for each litigant.” Id. at 234 (emphasis added). The client’s interests are ill-served when an untrained attorney faces a seasoned and experienced opponent. “The young doctor just graduated from the finest medical school is not permitted to take scalpel in hand to perform delicate surgery without a skilled and seasoned surgeon at his side.” Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175, 177 (1974). Adoption of an experience requirement is a sound, and overdue, recognition that young attorneys, like young physicians, must be trained by experienced practitioners. Brown’s argument that the district court’s imposition of the trial bar membership requirement, in effect, disbarred him for incompetence mischaracterizes the nature of the district court’s action. We hold that, contrary to the plaintiff’s assertions of disbarment, the district court’s trial bar membership rule, imposes what we believe is a necessary and long needed qualification requirement upon present and future members of the district court bar who wish to have the opportunity to appear alone before the court in any proceeding and is not a finding that nonmembers of the trial bar are incompetent. Consequently, Brown’s argument that he was entitled to notice and the right to be heard because he was disbarred is groundless. B. The Power to Impose the Qualification Requirement The authority to adopt rules relating to admission to practice before the federal courts was delegated by Congress to the federal courts in Section 35 of the Judiciary Act of 1789, Act of September 25, 1789, Ch. 20, 1 Stat. 73, 92 now codified as 28 U.S.C. § 1654. In addition to § 1654, 28 U.S.C. § 2071 provides in part that “[t]he Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business.” Fed.R.Civ.P. 83, promulgated by the Supreme Court pursuant to its rule-making authority, specifies that, “[e]ach district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules.” The district court found, and we agree, that “[e]very federal court which has construed [28 U.S.C. §§ 1654, 2071 and Fed.R.Civ.P. 83] has held that they permit a federal district court to regulate the admission of attorneys who practice before it.” See, e.g., Matter of Roberts, 682 F.2d 105, 108 (3d Cir.1982); Matter of Abrams, 521 F.2d 1094, 1099 (3d Cir.), cert. denied, 423 U.S. 1038, 96 S.Ct. 574, 46 L.Ed.2d 413 (1975); Sanders v. Russell, 401 F.2d 241 (5th Cir.1968). In addition to the authority delegated by Congress, federal courts have the inherent power to regulate the conduct of attorneys and to disbar attorneys. Theard, 354 U.S. at 281, 77 S.Ct. at 1276; Ex Parte Secombe, 60 U.S. (19 How.) 9, 13, 15 L.Ed. 565 (1856); see generally State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932) (reviewing cases from the Middle Ages to the nineteenth century). The courts’ authority and responsibility for insuring the quality of attorney advocacy has long been recognized by the Supreme Court: “The authority of the court over its attorneys and counselors is of the highest importance. They constitute a profession essential to society. Their aid is required not merely to represent suitors before the courts, but in the more difficult transactions in private life. The highest interests are placed in their hands and confided to their management. The confidence which they receive and the responsibilities which they are obliged to assume demand not only ability of a high order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission are intended to secure those qualities.” Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540, 19 L.Ed. 285 (1869). “[T]he power of disbarment is necessary for the protection of the public in order to strip a man of the implied representation by courts that a man who is allowed to hold himself out to practice before them is in ‘good standing’ so to do.” Theard, 354 U.S. at 281, 77 S.Ct. at 1276. Accordingly, we hold that the adoption of the requirement of trial bar membership was within the district court’s authority to regulate the admission of qualified attorneys who practice before the court. We now turn to the question of whether Brown’s “previously granted license[ ] to practice and to try cases in the federal district court for the Northern District of Illinois may not be retroactively limited by Congress or the district court.” “The legislature may undoubtedly prescribe qualifications for the office [of attorney and counselor] to which [an attorney] must conform, as it may, where it has exclusive jurisdiction, prescribe qualifications for the pursuit of the ordinary advocations of life.” Ex parte Garland, 71 U.S. (4 Wall.) 333, 379, 18 L.Ed. 366 (1866); see also Dent v. West Virginia, 129 U.S. 114, 122-28, 9 S.Ct. 231, 233-35, 32 L.Ed. 623 (1888) (physician’s license). “The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will ... tend to secure them against the consequences of ignorance and incapacity as well as deception and fraud.” Dent, 129 U.S. at 122, 9 S.Ct. at 233. The qualifications placed on the license of a professional must be reasonably related to the profession and attainable by reasonable study or application. Id. at 122, 9 S.Ct. at 233; Garland, 71 U.S. at 379-80; Schware v. Bd. of Bar Exam. of State of N.M., 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957). The state may exclude from practice those who are not qualified to hold a professional license. Dent, 129 U.S. at 122-23, 9 S.Ct. at 233. Cf. Theard, 354 U.S. at 278, 77 S.Ct. at 1274. To protect society against unqualified licensed professionals, the State may require a licensed professional to satisfy additional conditions after the license is granted. Dent, 129 U.S. at 123, 9 S.Ct. at 233. See, e.g., Wis.S.C.R. 30.01 et seq. (continuing legal education requirement); Wis.Admin.Code § Med. 13 (1977) (continuing medical education for physicians). The decision to apply conditions retroactively, like a decision to adopt retroactive economic legislation, satisfies due process if it is justified by a rational legislative purpose. Pension Benefit-Guarantee Corp. v. R.A. Gray & Co., — U.S. —, 104 S.Ct. 2709, 2718, 81 L.Ed.2d 601 (1984). Public attention was drawn to the problem of inadequate trial advocacy by Chief Justice Burger’s 1973 lecture expressing grave concern about the problem. Burger, The Special Skills of Advocacy, 42 Fordham L.Rev. 227 (1973). Indeed, several federal court of appeals judges expressed agreement with the Chief Justice. See, e.g., Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974) (“Too many lawyers come into court today with only a diploma to justify their claims to be advocates. They are untrained and unadvised in the immensely practical work of litigation.” Id. at 176); Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973) (“I come upon these ‘walking violations of the sixth amendment’ week after week in the cases I review.” Id. at 2). The Devitt Committee, appointed by Chief Justice Burger in 1976, surveyed federal district judges and found that forty-one percent of them believe that the problem of inadequate advocacy is severe. 83 F.R.D. at 219. Twenty-five percent of the attorneys’ performances in trials evaluated by the judges for the Federal Judicial Center Study were rated as “less than good.” Id. The judges also expressed their belief that, “as a direct result of lawyer inadequacy, the interests of the clients were not fully protected.” The Federal Judicial Center study also revealed a correlation between the quality of trial performances and the prior experience of the attorneys evaluated. Id. at 222. Moreover, a 1978 American Bar Association telephone survey of 599 lawyers chosen at random revealed that forty-one percent believed that lack of trial competency was a serious problem. Burger, Some Further Reflections on the Problem of Adequacy of Trial Counsel, 49 Fordham L.Rev. 1, 9 (1980). The impact on our justice system caused by inadequate trial lawyers was succinctly stated by Chief Justice Burger: “As the complexity and volume of both civil and criminal litigation escalates, the quality of advocacy directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice. Far too many civil cases are currently being tried which experienced, well-trained lawyers would negotiate to settlement. There are too many cases taking four, five, or six days to try, which truly competent attorneys would try in a third that time — or less. Because of this, persons who are waiting to have their cases tried must wait longer. In civil cases the inadequacy translates into delays that increase the costs of obtaining judgment and rob even a just judgment of much of its value, the same kind of “economic larcency” which inflation works on all of us. Delays in criminal cases, when combined with our very liberal bail release concepts of today, may leave some persons on the streets who are ultimately going to be found guilty and confined. Conversely, there is the risk that some defendants who cannot gain release may be confined for long periods. Long trial delay with defendants at large means the public is placed in continuing jeopardy.” Id. at 19-20. As we have discussed, the Devitt Committee, after reviewing its surveys and the Federal Judicial Center Studies, concluded that, “lawyers without previous trial experience are much more likely to turn in inadequate performances and are less likely to turn in very good or first rate performances, and it permits the inference that experience improves the quality of performance.” 79 F.R.D. at 196-97. The experience requirement of the trial bar membership rule was recommended by the Devitt Committee “to insure a substantial probability of adequate trial performance” in response to evidence of the serious problem of inadequate trial advocacy and is analogous to the continuing legal education requirement imposed by some states. See, e.g., Wis.S.C.R. 30.01 et seq. The Devitt Committee recommended that present members of the district court bars be required to satisfy the experience requirement because, “the data on inadequacy is drawn from present bar members spanning all age groups and that exempting all present members as well as all who become members prior to the effective date of the new rules will exempt the very individuals whose inadequate performances justify new standards.” 79 F.R.D. at 200. Courts have looked with increasing favor on measures designed to insure an acceptable level of competency in licensed professionals. See, e.g., Marrese v. Interqual, 748 F.2d 373 (1984), cert. denied, — U.S. —, 105 S.Ct. 3501, 87 L.Ed.2d 632 (1985) (physicians’ peer review). We hold that the experience requirement is reasonably related to the practice of law and attainable by reasonable study or application. Furthermore, we hold that retroactive application of the experience requirement does not violate due process because it is justified by a rational legislative purpose — maintaining a high standard of advocacy in the federal courts. C. Procedural Due Process The district court held that because adoption of the trial bar membership requirement was an exercise of rulemaking rather than adjudicatory power, the Fifth Amendment’s requirement of individualized due process did not apply. Brown argues that we should not apply this rule, drawn from Bi-Metallic Investment Co. v. Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), because the agency involved in the Bi-Metallic case was created by and answerable to a state legislature. Brown notes that the Supreme Court found in Bi-Metallic that when Congress passes legislation, individual “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Id. at 445, 36 S.Ct. at 142. The plaintiff urges that his individual rights were not protected because “he had no voice” in either the selection of the advisory committee that solicited comments from attorneys in the Northern District of Illinois and reported their findings to the Northern District or in the selection of the district court’s appointed judges. However, we need not resolve this issue of whether federal judges are answerable to Congress in the same manner in which federal agencies are answerable to Congress because an examination of the record reveals that Brown received notice and an opportunity to be heard. Cf. Pension Benefit, 104 S.Ct. at 2719. Whether an affected party must receive individual notice depends upon the character of the action. When individual interests are adversely affected by a legislation action, publication of the statute puts all individuals on notice of a change in the law of the jurisdiction; individual notice is not required. Texaco v. Short, 454 U.S. 516, 531-38, 102 S.Ct. 781, 793-97, 70 L.Ed.2d 738 (1982). “[I]t has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.” Id. at 536, 102 S.Ct. at 796. See also Atkins v. Parker, — U.S. —, 105 S.Ct. 2520, 2529, 86 L.Ed.2d 81 (1985). On the other hand, in an adjudicatory hearing, procedural due process requires that an individual whose interest is at stake must be given, “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). As to the requirement of an opportunity to be heard, the significance of the plaintiff’s loss must be balanced with the governmental interest at stake. Goldberg v. Kelly, 397 U.S. 254, 262-63, 90 S.Ct. 1011, 1017-18, 25 L.Ed.2d 287 (1970). The court must consider three factors: “First, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved in the physical and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). By arguing that he should have received individual notice, Brown urges us to create an exception to the rule that the legislative publication of a statute satisfies the notice requirement of procedural due process. See Texaco, 454 U.S. at 538, 102 S.Ct. at 797. We need not address Brown’s questionable contention that individual notice of a legislative type action with retrospective aspects is constitutionally compelled because, as the record demonstrates, ample notice was given. Cf. Pension Benefit, 104 S.Ct. at 2719. The Devitt Committee’s soliciting information about the adequacy problem and proposed solutions was patterned after the “notice and comment” procedure of the federal Administrative Procedures Act. Devitt, Improving Trial Advocacy, 72 F.R.D. 471, 475 (1976). The district court found that the Devitt Committee conducted a lengthy inquiry, which included a survey of the legal community’s views and four public hearings, and published its first report in 1978. 79 F.R.D. 187 (1978). The Devitt Committee held additional hearings after the publication of its first report and issued a final report in 1979. 83 F.R.D. 215 (1979). Both reports recommended that the experience requirement for admission to the trial bar be applied to present members of district court bars. 79 F.R.D. at 199-200; 83 F.R.D. at 223. The District Court for the Northern District of Illinois appointed an advisory committee, the Austin Committee, to implement the Devitt Committee’s recommendations. In ruling on the defendants’ motion for summary judgment, the district court found that, “[t]he Austin Committee published the proposed rules in the March 26, 1981, issue of the Chicago Law Bulletin and in the Mar.-Apr. 1981 issue of the Chicago Bar Record and invited interested parties to submit their views. All interested attorneys were invited to attend and participate in an open meeting on the proposed rules held on Apr. 26, 1981.” Addressing the issue of Brown’s loss, examination of the district court’s rules reveals that the loss he has suffered is that he cannot appear alone at the trial of a civil case, and he cannot appear alone in criminal proceedings. N.D.Ill. General R. 3.10. The plaintiff retains his right to appear alone in every aspect of civil litigation except the actual trial, i.e., filing the complaint, discovery, motions and status hearings. Id. Balanced against this restriction on his right to practice, is the significant government interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district courts. The material reviewed by the Devitt Committee confirmed the existence of the inadequacy problem and supported Chief Justice Burger’s observation that inadequate trial advocacy, “directly affects the rights of litigants, the costs of litigation, the proper functioning of the system of justice, and, ultimately, the quality of justice.” 49 Fordham L.Rev. at 19-20. Addressing the issue of how to improve the quality of advocacy, the Devitt Committee discovered, “no one has yet devised an examination which will test one’s ability to be a courtroom advocate.” 79 F.R.D. at 196. The Devitt Committee adopted the experience requirement to insure a substantial probability of adequate trial performances. Id. Thus, the record reveals that the procedure followed in adopting the rules adequately identified the problem, researched various solutions, solicited public comment on both the problem and possible solutions, and properly determined that the problem of inadequate trial advocacy could be solved in part by requiring attorneys to demonstrate their competence by satisfying the.experience requirements. The district court found, and we agree, that the Committees’ “notice and comment” procedures were elaborate and fair. Balancing the plaintiffs’ loss against the significant governmental (and consumer) interest in maintaining minimum standards of advocacy and improving the quality of the attorneys practicing before the district court, we hold that the plaintiffs received notice reasonably calculated to appraise them of the pendency of the action and an adequate opportunity to be heard. The decision of the district court is Affirmed. . Rule 3.00C provides: "C. Definitions (1) Testimonial proceedings: Testimonial proceedings are proceedings conducted in open court before a District judge, U.S. magistrate, bankruptcy judge or trial judge of the state court in which the oral testimony of a witness is presented and the rules of evidence are applicable. Procedures limited to taking the deposition of a witness do not constitute testimonial proceedings for purposes of this Rule. (2) Qualifying trial: A qualifying trial is either (a) a trial lasting at least one day in a trial court of record, involving substantial testimonial proceedings and going to the merits, or (b) an evidentiary hearing before a trial court of record equivalent to a trial in which testimonial evidence going to the merits is taken. (3) Participation unit: A person is credited with one participation unit for each qualifying trial in which he/she participates as the lead counsel or the assistant to the lead counsel. Where a qualifying trial lasts more than three days, the person is credited with one additional participation unit for each three full days of trial in excess of the first three days. A maximum of four participation units can be credited for one trial. (4) Observation unit: A person is credited with one observation unit for each qualifying trial he/she observes in which a member of the trial bar of this Court supervises the observation and consults with the person about the trial. (5) Simulation unit: A person is credited with a simulation unit where, as part of a law school or continuing education course, he/she satisfactorily participates in a simulated trial that is recognized by the District Admissions Committee as being adequately supervised. The supervisor of the simulated trial may certify that the person’s performance was satisfactory. (6) Qualifying units of trial experience: Participation units, observation units and simulation units as defined in this Rule are qualifying units of trial experience. (7) Required trial experience: Required trial experience consists of four qualifying units of trial experience, at least two of which are participation units." . Rule 3.10D provides: “D. Waiver and Exceptional Cases A judge may grant permission in a civil or criminal proceeding pending before him/her to an attorney admitted to the bar, but not to the trial bar, to appear alone in any aspect of the matter only upon written request by the client and a showing that the interests of justice are best served by waiving the experience requirements otherwise required by these Rules. Such permission shall apply only to the proceeding in which it was granted. Granting of such permission shall be limited to exceptional circumstances.” Question: 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_bank_r1	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. Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. ATLANTIC FISHERMEN’S UNION, etc., et al. v. UNITED STATES. No. 4657. United States Court of Appeals First Circuit. June 18, 1952. Henry Wise, Boston, Mass., for appellants. Gerald J. McCarthy, Special Asst, to the Atty. Gen., and William J. Elkins and Alfred M. Agress, Special Attys., Department of Justice, Boston, Mass., for ap-pellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. PER CURIAM. Appellants are under indictment in the court below for violations of the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note. They moved for dismissal of the indictment on the ground that the district court was without jurisdiction of the subject matter, in that the matters alleged are within the exclusive jurisdiction of the National Labor Relations Board under the Labor Management Relations Act, 1947, as amended, 29 U.S.C.A. § 151 et seq., which to that extent has superseded the Sherman Act. It was also claimed that the subject matter of the indictment is within the exclusive jurisdiction of the Secretary of the Interior under the Fisheries Co-operative Marketing Act, 15 U.S.C.A. §§ 521, 522, which to that extent has superseded the Sherman Act. The district court entered an order denying the motion to dismiss. From this order an appeal was taken. We dismissed the appeal for lack of jurisdiction by order entered June 4, 1’952, on the ground that the order appealed from was merely an interlocutory order in the course of a criminal proceeding, whereas this court has jurisdiction of appeals in criminal cases, under 28 U.S.C. § 1291, only from “final decisions” of the district courts. In support of our order dismissing the appeal we cited Heike v. United States, 1910, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821; Catlin v. United States, 1945, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911; Dowling Bros. Distilling Co. v. United States, 6 Cir., 1946, 153 F.2d 353, certiorari denied Gould v. U. S., 1946, 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1622; United States v. Knight, 3 Cir., 1947, 162 F.2d 809. Appellants now move for an order staying mandate pending an application for a writ of certiorari, and also make application to us for an order directed to the district court, ordering that all proceedings in said court under the indictment he stayed for a reasonable time, and until further order' of this court or the order of the Supreme Court of the United States, to enable the parties aggrieved to obtain a writ of certiorari from the Supreme Court of the United States. The order of the district court denying the motion to dismiss the indictment was obviously not a “final decision” within the meaning of 28 U.S.C. .§ 1291 and the attempted appeal therefrom was, we think, obviously frivolous. We will not, therefore, take the responsibility of countenancing further delay in the trial of this criminal case. If any stay of the proceedings below is to be had, it must come from higher authority. The application for stay of proceedings is denied. It is ordered that mandate herein issue forthwith. Question: Is the first listed respondent bankrupt? A. Yes B. No Answer:
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. R.A. BULALA, M.D., Defendant-Appellant, Association of Trial Lawyers of America; Virginia Trial Lawyers Association; Distressed Parents Together; Consumer Federation of America; Medical Society of Virginia, Amici Curiae. Helen C. BOYD; Roger E. Boyd; Veronica Lynn Boyd, by her parents and next friends, Helen Boyd & Roger E. Boyd, Plaintiffs-Appellees, v. COMMONWEALTH OF VIRGINIA; R.A. Búlala, M.D., Defendants-Appellants. Nos. 88-2055, 88-2056. United States Court of Appeals, Fourth Circuit. Submitted March 27, 1990. Decided June 12, 1990. Phillip C. Stone, Ronald D. Hodges, Wharton, Aldhizer & Weaver, Harrison-burg, Va., A.E. Dick Howard, Charlottes-ville, Va., Mary Sue Terry, Atty. Gen., Gregory E. Lucyk, Asst. Atty. Gen., Richmond, Va., for defendants-appellants. William O.P. Snead, III, Fairfax, Va., J. Randolph Parker, Tucker, Parker & Bes-kin, Charlottesville, Va., Rosemarie Annun-ziata, Dickstein, Shapiro & Morin, Vienna, Va., for plaintiffs-appellees. Bill Wagner, Tampa, Fla., Jeffrey R. White, Washington, D.C., Fred D. Smith, Jr., Minor & Smith, Richmond, Va., for amici curiae The Ass’n of Trial Lawyers of America, Virginia Trial Lawyers Ass’n, Consumer Federation of America, and Distressed Parents Together. Allen C. Goolsby, III, Patricia M. Schwarzschild, Robert Aeosta-Lewis, Timothy A. Hartin, Hunton & Williams, Richmond, Va., for amicus curiae The Medical Soc. of Virginia. J. Joseph Curran, Jr., Atty. Gen., Judson P. Garrett, Jr., Deputy Atty. Gen., Robert A. Zarnoch, Kathryn M. Rowe, Asst. Attys. Gen., Annapolis, Md., for amicus curiae State of Md. John R. Bolton, Asst. Atty. Gen., Robert S. Greenspan, Scott R. McIntosh, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for amicus curiae U.S. Before HALL and PHILLIPS, Circuit Judges, and WINTER, Senior Circuit Judge. Judge Winter participated in oral argument and submission of this case back to the panel after certification to the Supreme Court of Virginia, but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). PER CURIAM: This medical malpractice action returns to us after certification of several questions to the Supreme Court of Virginia. See Boyd v. Búlala, 877 F.2d 1191 (4th Cir.1989). That court recently issued an opinion answering those questions, and we are now able to decide the remaining issues in the appeal. I The facts of the case and the course of proceedings leading to this appeal are fully set out in our earlier opinion and in the opinion of the Supreme Court of Virginia, see Búlala v. Boyd, 389 S.E.2d 670 (Va. 1990), and need not be repeated here. A brief summary will suffice for present purposes. This medical malpractice action was based on allegations of negligence by Dr. Búlala which resulted in the birth of Veronica Boyd with serious birth defects and injury to her mother, Helen Boyd, during the process of Veronica’s birth. The action included claims by Veronica Boyd for her personal injuries; by Helen Boyd, for her personal injury and emotional distress; by the father, Roger Boyd, for emotional distress; and by the parents jointly for Veronica’s anticipated medical expenses. Veronica and Helen Boyd’s claims were for both compensatory and punitive damages. A jury found Dr. Búlala liable on all the claims and, in separate verdicts, made the following damage awards: (1) For Veronica Boyd compensatory damages $1,850,000 punitive damages $1,000,000 (2) For Helen Boyd compensatory damages $1,575,000 punitive damages $1,000,000 (3) For Roger Boyd (emotional distress) $1,175,000 (4)For Helen and Roger Boyd jointly (medical expenses) $1,700,000 Total Awards $8,300,000 The district court first entered judgment on the verdicts as returned, but then reduced the judgment of each plaintiff proportionately to reflect an aggregate settlement of $650,000, which they had received in a state court action against the hospital involved. See Boyd v. Búlala, 877 F.2d 1191, 1193 n. 1 (4th Cir.1989). This appeal by Dr. Búlala followed. Dr. Bulala’s principal contention on appeal was that the district court erred in holding that Virginia’s then statutory “cap” of $750,000 on medical malpractice awards, Va.Code Ann. § 8.01-581.15 (1984), violated both state and federal constitutional provisions and so could not be applied to limit in any way the overall recovery against him. He also challenged the district court’s rulings and instructions to the jury that under Virginia law he could be found liable to the plaintiffs for the negligence of hospital nurses on a respondeat superior basis; that the father, Roger Boyd, might recover for his emotional distress in the absence of any physical injury to himself; that Veronica might recover compensatory damages for her loss of the enjoyment of life and, on the evidence adduced, for lost earning capacity; and that the evidence warranted awards of punitive damages against him. Finally, he challenged two critical procedural rulings: that Veronica’s death after verdict but before judgment did not require converting her claim into one for wrongful death, and that her death in that interval did not require relief from the judgment which reflected awards on the basis of a much more extended life expectancy. In our first opinion we decided several of these issues. Specifically, we held that Virginia’s $750,000 statutory cap on medical malpractice recoveries violated neither the state nor federal constitutional provisions relied on by Búlala. And we further held that under settled Virginia law and on the evidence adduced, Búlala properly could be found liable to the plaintiffs on a respondeat superior basis; that punitive damages on both Veronica’s and Helen Boyd’s claims properly could be awarded; and that Roger Boyd properly could recover for his emotional distress despite the lack of any personal injury to himself. But we thought that several further questions of Virginia law whose resolution was potentially required to decide the appeal were sufficiently unsettled to warrant their certification to the Supreme Court of Virginia to provide answers for our guidance. Accordingly, we requested that court to answer the following questions: 1. Where there are two or more plaintiffs entitled to recover damages arising from the same act or acts of medical malpractice, does § 8.01-581.15 apply individually to each plaintiff or overall to two or more such plaintiffs? If the statute does apply to all or any combination of plaintiffs’ claims, how is it to be apportioned among them? 2. Does § 8.01-581.15 apply to damages for the infliction of emotional distress arising from some act or acts of medical malpractice? 3. Does § 8.01-581.15 apply to an award of punitive damages for an act or acts of medical malpractice? 4. Does Virginia law allow recovery for the loss of enjoyment of life when death results from an act or acts of medical malpractice? 5. Does Virginia law allow Veronica Boyd to recover damages for her lost earning capacity based upon the evidence presented in this case? 6. What is the effect, under Va.Code Ann. §§ 8.01-21, 8.01-25, and 8.01-56, of Veronica Boyd’s death after verdict but before judgment in this case? See Boyd v. Bulala, 877 F.2d 1191, 1200 (4th Cir.1989). Accepting the certification, the Supreme Court of Virginia, in a comprehensive opinion, Búlala v. Boyd, 389 S.E.2d 670 (Va.1990), answered the questions as follows (in our paraphrase): (1), (2), and (3). The statutory cap sets a separate limit on the total damages recoverable for “any injury” to a single “patient,” regardless of the number of claims and claimants and theories of recovery related to that injury. Accordingly, the cap applicable to any single patient’s injury covers both compensatory and punitive damage claims of the patient and any claims by others that, by substantive law, are “derivative” of the patient’s claims. As applied to the facts found in this case, Veronica Boyd and her mother, Helen Boyd, were each “patients” of Dr. Búlala who suffered separate injuries from his negligence. On this basis, the cap applies separately as a limit upon all the damages, both compensatory and punitive, recoverable by anyone for the respective injuries of these two patients, i.e., as a $750,000 limit upon the total damages properly recoverable for Veronica Boyd’s injuries, and as a $750,000 limit upon the total damages properly recoverable for Helen Boyd’s injuries. Because both the claim of Roger Boyd for his emotional distress arising from Veronica’s injuries and the joint claim of Roger and Helen Boyd for medical expenses attributable to those injuries are “derivative” of Veronica’s claim, they are therefore subject to the cap applicable to that claim. Where, as here, the aggregate of the damage awards subject to a separate cap exceeds the cap, reduction of the awards, in whole or part, to reach the cap level (with any consequent apportionment between claimants) should occur in the following order of reduction: first, awards based on derivative claims of others than the patient; next, punitive damage awards to the patient; last, compensatory damage awards to the patient. On this basis, because the compensatory damage awards to each of the patients, Veronica Boyd and Helen Boyd, each exceeded $750,000, all of the further awards based upon the derivative claims of Roger Boyd and of Roger and Helen Boyd jointly, and the punitive damage awards to Veronica and Helen Boyd, respectively, must be annulled in toto. The remaining compensatory awards to Veronica and Helen Boyd, respectively, must then be reduced to the $750,000 cap, less a further reduction of each by $325,-000, representing one-half of the total $650,000 realized in the earlier settlement. (4). Virginia does not recognize as a separately compensable item of damages for personal injury the “loss of enjoyment of life.” (5). On the evidence adduced in this case, Virginia law would not permit recovery by Veronica Boyd of damages for “lost earning capacity.” Consequently, the district court’s submission of these to the jury as compensable items of damage in respect of Veronica Boyd’s claim was erroneous. (6). Under Virginia law, Veronica Boyd’s death after verdict did not require converting her claim into one for wrongful death. Va.Code Ann. § 8.01-21 directly so provides, by directing that in such cases, “judgment may be entered as if [death] had not occurred.” Sections 8.01-25 and 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict. II The Virginia court’s careful answers, which we of course fully accept, allow us now to resolve the issues reserved in our earlier opinion and fully to decide the appeal. Resolution of the reserved issues would be flatly dictated by those answers save for one difficulty. It is that posed by the Virginia court’s advice that under Virginia law, the district court erred in allowing the jury to take into account loss of enjoyment of life and lost earning capacity in assessing Veronica Boyd’s compensatory damages. The problem is that we cannot know for sure whether the jury’s consideration of either or both of these items could have run their compensatory award above the $750,000 cap level. At $1,850,000, that award was of course over a million dollars in excess of the cap. We would therefore have to assume that more than a million dollars, an amount more than one-half of the award, was probably attributable to these two items in order to find a new trial on damages compelled. While the importance of these items, hence the weight probably attached to them by the jury, is obvious, we are yet doubtful that they could have had such a dominant impact on the total award. Whatever uneasiness we might feel on the point, however, is dispelled by the fact that over and above the compensatory award was an untainted punitive damage award of an additional $1,000,000 which could be applied to the recovery allowable under the cap. And even if we were to speculate that a new trial which yielded a reduced compensatory award would probably yield a commensurately reduced punitive award, we think the possibility that the two in combination could fail to reach the available cap level is too remote to warrant the expense and delay of a new trial on the damages issue. Under 28 U.S.C. § 2106, we have the power and obligation, sitting in appellate review, to take whatever action is “just under the circumstances.” Here, despite the existence of legal error in the jury instructions on compensatory damages as to Veronica Boyd’s claim, we think the circumstances do not warrant requiring a new trial on that issue. Given the substantial margin — in the range of two million dollars — by which the combined compensatory and punitive damage awards exceed the statutory cap, we think it would not be just to withhold judgment limited to the much lower cap figure. One further issue which we reserved pending the Virginia court’s response concerned the district court’s denial of Dr. Bulala’s motion under Fed.R.Civ.P. 60(b)(6) to be relieved of the judgment in favor of Veronica Boyd because of her intervening death. Dr. Bulala’s contention is that, if her claim was not required to be converted to one for wrongful death, her early death made it manifest that the jury award for her personal injuries, based as it necessarily was on the assumption of a much more extended life expectancy, was so substantially over-inflated as to provide the necessary “reason” under Rule 60(b)(6) for being relieved of the judgment. The district court denied that motion in an exercise of the broad discretion conferred by this residual relief provision of Rule 60(b). As we have recognized, "[t]he remedy provided by [this] Rule ... is extraordinary and is only to be invoked upon a showing of exceptional circumstances." Compton v. Alton Steamship Co., 608 F.2d 96, 102 (4th Cir.1979). Under all the provisions of Rule 60(b), a threshold condition for granting the relief is that the movant demonstrate that granting that relief will not in the end have been a futile gesture, by showing that she has a meritorious defense or claim. See generally 11 Wright & Miller, Federal Practice and Procedure: Civil § 2857, p. 161 (1973). Here, essentially for the same reasons that we found the granting of a new trial because of erroneous jury instructions not warranted, i.e., that a new trial on damages would not yield damages totalling less than the cap, we think the circumstance of this claimant's early death not an exceptional one warranting relief from that judgment. We therefore conclude that the district court did not abuse its discretion in denying the motion. III For the foregoing reasons, we remand the action to the district court with directions to vacate its present judgment and to enter judgment in favor of Veronica Boyd in the sum of $425,000, with interest and costs, and in favor of Helen Boyd in the sum of $425,000, with interest and costs. SO ORDERED. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
sc_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. ANGELET v. FAY, WARDEN. No. 578. Argued March 11, 1965. Decided June 7, 1965. Leon B. Polsky argued the cause and filed a brief for petitioner. Gray Thoron argued the cause for respondent. On the brief were Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, Barry Mahoney, Assistant Attorney General, and Michael H. Rauch and Brenda Soloff, Deputy Assistant Attorneys General. Michael Juviler argued the cause for the National District Attorneys’ Association, as amicus curiae, urging affirmance. With him on the brief was H. Richard TJviller. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, Barry Mahoney and Thomas F. O’Hare, Jr., Assistant Attorneys General, H. Richard Uvüler and Michael Juviler filed a supplementary memorandum on behalf of the National District Attorneys’ Association, as amicus curiae. Mr. Justice Clark delivered the opinion of the Court. This is a companion case to No. 95, Linkletter v. Walker, ante, p. 618. Petitioner was convicted in a New York State court in 1951 for possession of narcotics with intent to sell. On December 21, 1950, two detectives attached to the Narcotics Squad of the New York City Police Department entered petitioner’s apartment by a door opened by a painter who was just leaving. They ignored the protest of petitioner and proceeded, without a warrant, to search the apartment. Upon entering, one of the officers called an agent of the Federal Bureau of Narcotics. After two federal agents arrived the local and federal officers made a thorough search of the apartment. One of the local officers found 54 cellophane envelopes, 106 empty capsules, a box of staples and a scale. A federal agent found four packages under a hat. Analysis revealed that three of the packets contained heroin and the other contained cocaine. These items were introduced in evidence at the state trial without objection of petitioner’s counsel. Nor was objection made to the participation of the federal narcotics agents in the investigation. After conviction petitioner filed a notice of appeal to the Appellate Division but the appeal was dismissed in March of 1952. In August 1961, after Mapp v. Ohio, 367 U. S. 643, was decided, petitioner resorted to state post-conviction remedies claiming that the evidence found in his apartment and introduced against him had been illegally seized and that his conviction had therefore been obtained in violation of the Fourth and Fourteenth Amendments. Upon seeking habeas corpus in the United States District Court on the same grounds his application was denied. The trial judge refused to apply Mapp retrospectively. The Court of Appeals sitting en banc affirmed by a divided vote. 333 F. 2d 12. We granted certiorari, 379 U. S. 815 (1964), and set this case for argument with Linkletter, supra. That case answers petitioner’s point as to the retrospective application of Mapp. However, petitioner also contends that the participation of federal narcotics agents in the search and seizure requires reversal here, citing Rea v. United States, 350 U. S. 214 (1956). We cannot agree. That case invoked the supervisory power of a federal court over a federal law enforcement officer and we held that the latter might be enjoined from appearing in a state trial for the purpose of offering evidence previously seized by him illegally as a federal officer and so found by a federal court. But even if an exclusionary rule were fashioned to bar use of the federal agent’s testimony in the absence of a federal court restraint, the petitioner would be entitled to no relief. Such an exclusionary rule would depend upon the reasons given in Mapp and under Linkletter, supra, would not have retrospective application. Affirmed. Mr. Justice Black and Mr. Justice Douglas would reverse the judgment of the Court of Appeals for the reasons stated in Mr. Justice Black’s dissenting opinion in Linkletter v. Walker, ante, p. 640. 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_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Robert Mitchell PEARSON, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee. No. 25161. United States Court of Appeals Fifth Circuit. Sept. 23, 1968. Robert M. Pearson, pro se. Robert E. Owen, Asst. Atty. Gen., Austin, Tex., for appellee. Before RIVES, WISDOM and SIMPSON, Circuit Judges. PER CURIAM: The record in this appeal, taken in forma pauperis, was lodged with this Court on August 30, 1967. The appeal is from an adverse judgment with respect to a petition for habeas corpus by a Texas state prisoner serving a life sentence for murder with malice in the custody of the respondent-appellee. The district court held a full adversary hearing, with the petitioner represented by court-appointed counsel; and entered complete findings of fact and conclusions of law. A prior panel of this Court on March 27, 1968, granted the request of appellant’s court-appointed counsel for leave to withdraw, and denied appellant’s pro se request for the appointment of additional counsel. Since that date appellant has failed to file his brief herein and the time therefor has long since expired, despite appropriate notice served upon appellant by the Clerk of this Court. (See Rule 24, former Rules of this Court, and Rule 31, Federal Rules of Appellate Procedure effective July 1, 1968). The appellant’s failure to file his brief has been referred to the Court by the Clerk under the provisions of Rule 9(c) 2, Local Rules of this Court effective July 1, 1968. Close inspection of the record convinces us that this appeal is without merit. Appellant would be required to demonstrate that the findings of fact of the trial court were clearly erroneous (see Rule 52(a), F.R.Civ. P.), and our inspection of the record leads us to the conclusion that this is not possible. Accordingly, the judgment of the court below is summarily Affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
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. NEW JERSEY v. PORTASH No. 77-1489. Argued December 5, 1978 Decided March 20, 1979 Stewart, J., delivered the opinion of the Court, in which BreNnaN, White, Marshall, Powell, RehNqtjist, and SteveNS, JJ., joined. BreNNAN, J., filed a concurring opinion, in which Marshall, J., joined, post, p. 460. Powell, J., filed a concurring opinion, in which RehNQuist, J., joined, post, p. 462. BlacicmuN, J., filed a dissenting opinion, in which Burger, C. J., joined, post, p. 463. Edwin H. Stier argued the cause for petitioner. With him on the brief were John J. Degnan, Attorney General of New Jersey, and Richard W. Berg, Deputy Attorney General. Michael E. Wilbert argued the cause and filed a brief for respondent. Mr. Justice Stewart delivered the opinion of the Court. This case involves the scope of the privilege against compulsory self-incrimination, grounded in the Fifth Amendment and made binding against the States by the Fourteenth. The precise question is whether, despite this constitutional privilege, a prosecutor may use a person’s legislatively immunized grand jury testimony to impeach his credibility as a testifying defendant in a criminal trial. I In the early 1970’s, Joseph Portash was Mayor of Manchester Township, Executive Director of the Pinelands Environmental Council, and a member of both the Ocean County Board of Freeholders and the Manchester Municipal Utilities Authority in New Jersey. In November 1974, after a lengthy investigation, a state grand jury subpoenaed Portash. He expressed an intention to claim his privilege against compulsory self-incrimination. The prosecutors and Portash’s lawyers then agreed that, if Portash testified before the grand jury, neither his statements nor any evidence derived from them could, under New Jersey law, be used in subsequent criminal proceedings (except in prosecutions for perjury or false swearing) , After Portash’s testimony, the parties tried to come to an agreement to avoid a criminal prosecution against Portash, but no bargain was reached. In April 1975, Portash was indicted for misconduct in office and extortion by a public official. Before trial, defense counsel sought to obtain a ruling from the trial judge that no use of the immunized grand jury testimony would be permitted. The judge refused to rule that the prosecution could not use this testimony for purposes of impeachment. After the completion of the State’s case, defense counsel renewed his request for a ruling by the trial judge as to the use of the grand jury testimony. There followed an extended colloquy, and the judge finally ruled that if Portash testified and gave an answer on direct or cross-examination which was materially inconsistent with his grand jury testimony, the prosecutor could use that testimony in his cross-examination of Portash. Defense counsel then stated that, because of this ruling, he would advise his client not to take the stand. Portash did not testify, and the jury ultimately found him guilty on one of the two counts. The New Jersey Appellate Division reversed the conviction. 151 N. J. Super. 200, 376 A. 2d 950 .(1977). That court held that the Constitution requires that the immunity granted by the New Jersey statute must be at least coextensive with the privilege afforded by the Fifth and Fourteenth Amendments. To confer such protection, the court reasoned, the grant of immunity must “leave defendant and the State in the position each would have occupied had defendant’s claim of privilege [before the grand jury] been honored.” Id., at 205, 376 A. 2d, at 953. Use of the immunized grand jury testimony to impeach a defendant at his trial, it held, did not meet this test. Because Portash’s decision not to testify was based upon the trial court’s erroneous ruling to the contrary, the Appellate Division reversed the conviction and remanded the case for a new trial. The New Jersey Supreme Court denied the State’s petition for certification of an appeal. 75 N. J. 597, 384 A. 2d 827 (1978). We granted certiorari. 436 U. S. 955. II New Jersey presents two questions. First, it argues that Portash cannot properly invoke the privilege against compulsory incrimination because he did not take the witness stand and, as a result, his immunized grand jury testimony was never used against him. Second, it urges that the Fifth and Fourteenth Amendments do not prohibit the use of immunized grand jury testimony to impeach materially inconsistent statements made at trial. A The State contends that the issue presented by Portash is abstract and hypothetical because he did not, in fact, become a witness. Portash could have taken the stand, testified, objected to the prosecution’s use of the immunized testimony to impeach him, and appealed any subsequent conviction. Absent that, the State would have us hold that the constitutional question was not and is not presented. This argument must be rejected. First, it is clear that although the trial judge was concerned about making a ruling before specific questions were asked, he did rule on the merits of the constitutional question: “THE COURT: Well, this is what the Court was concerned with and still is and I thought the Court had straightened it out previously, the witness taking the stand and testifying as to something and then have counsel saying didn’t you say before the grand jury such and such. “MR. WILBERT [defense counsel]: That’s the problem that we have. We don’t know whether he’s going to be able to use that or not, your Honor, especially if he didn’t touch that area in his examination— “THE COURT: Mr. Wilbert, suppose your client takes the stand and he testifies that I worked for Donald Safran and suppose he testified before the grand jury I never worked for Donald Safran? “MR. WILBERT: Inconsistency and under your Honor’s ruling that can be used in this case. “THE COURT: No doubt about it. “MR. WILBERT: Your Honor, I would submit it could be used over my objection, of course. “THE COURT: You have a standing objection with respect to the use at all of the grand jury testimony.” (Emphasis added.) App. 223a. Second, the New Jersey appellate court necessarily concluded that the federal constitutional question had been properly presented, because it ruled in Portash’s favor on the merits. See Raley v. Ohio, 360 U. S. 423, 435-437; cf. Jenkins v. Georgia, 418 U. S. 153, 157; Coleman v. Alabama, 377 U. S. 129, 133; Whitney v. California, 274 U. S. 357, 360-361; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 134. Moreover, there is nothing in federal law to prohibit New Jersey from following such a procedure, or, so long as the “case or controversy” requirement of Art. Ill is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it. This is made clear by a case decided by this Court in 1972, Brooks v. Tennessee, 406 U. S. 605. There the Court held unconstitutional a Tennessee statutory requirement that a defendant in a criminal case had to be his own first witness if he was to take the stand at all. The Court held that such a requirement unconstitutionally penalized a defendant’s right to remain silent, since a defendant could remain silent immediately after the close of the State’s case only at the cost of never testifying in his own defense. Although Brooks had not testified, the Tennessee court considered the constitutional validity of the state statute, and so did this Court. Because the rule imposed a penalty on the right to remain silent, the Court found that his constitutional rights had been infringed even though he had never taken the stand. Id., at 611 n. 6. In Brooks the Court held that the defendant’s Fifth and Fourteenth Amendment rights had been violated because, in order to assert his Fifth Amendment right to remain silent after the prosecution’s case in chief had been presented, the defendant would have had to pay a penalty. He could never testify. Here, as in Brooks, federal law does not insist that New Jersey was wrong in not requiring Portash to take the witness stand in order to raise his constitutional claim. B In both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U. S. 441, 445 n. 13, 446 n. 14. This Court first considered a constitutional challenge to an immunity statute in Counselman v. Hitchcock, 142 U. S. 547. The witness in that case had refused to testify before a federal grand jury in spite of a grant of immunity under the relevant federal statute. The Court overturned his contempt conviction. It construed the statute to permit the use of evidence derived from his immunized testimony. The witness was held to have validly asserted his privilege because “legislation cannot abridge a constitutional privilege, and . . . it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” Id., at 585. See also Brown v. United States, 359 U. S. 41; Ullmann v. United States, 350 U. S. 422; Brown v. Walker, 161 U. S. 591. After the holding in Malloy v. Hogan, 378 U. S. 1, that the Fifth Amendment privilege against compulsory self-incrimination is also contained in the Fourteenth Amendment, this rule is necessarily applicable to state immunity statutes as well. Cf. Murphy v. Waterfront Comm’n, 378 U. S. 52. Language in Counselman and its progeny was read by some to require that the witness must be immune from prosecution for the transaction his testimony concerned. Indeed, the federal statutes subsequently upheld by the Court granted such transactional immunity. Brown v. United States, supra; Ullman v. United States, supra; Heike v. United States, 227 U. S. 131; Brown v. Walker, supra. The adoption of Pub. L. 91-452 in 1970 marked a change in federal immunity legislation from the provision of transactional immunity to the provision of what is known as “use” immunity. 18 U. S. C §§ 6001, 6002. This immunity, similar to that provided by the New Jersey statute in this case, protects the witness from the use of his compelled testimony and any information derived from it. In Kastigar v. United States, supra, the Court upheld that statute against a challenge that mere use immunity is not coextensive with the Fifth Amendment’s privilege. “The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being 'forced to give testimony leading to the infliction of “penalties affixed to . . . criminal acts.” ’ Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.” 406 U. S., at 453. (Emphasis in original; footnote omitted.) Against this broad statement of the necessary constitutional scope of testimonial immunity, the State asks us to weigh Harris v. New York, 401 U. S. 222, and Oregon v. Hass, 420 U. S. 714. Those cases involved the use of statements, con-cededly taken in violation of Miranda v. Arizona, 384 U. S. 436, to impeach a defendant’s testimony at trial. In both eases the Court weighed the incremental deterrence of police illegality against the strong policy against countenancing perjury. In the balance, use of the incriminating statements for impeachment purposes prevailed. The State asks that we apply the same reasoning to this case. It points out that the interest in preventing perjury is just as strongly involved, and that the statements made to the grand jury are at least as reliable as those made by the defendants in Harris and Hass. But the State has overlooked a crucial distinction between those cases and this one. In Harris and Hass the Court expressly noted that the defendant made “no claim that the statements made to the police were coerced or involuntary,” Harris v. New York, supra, at 224; Oregon v. Hass, supra, at 722-723. That recognition was central to the decisions in those cases. The Fifth and the Fourteenth Amendments provide that no person “shall be compelled in any criminal case to be a witness against himself.” As we reaffirmed last Term, a defendant’s compelled statements, as opposed to statements taken in violation of Miranda, may not be put to any testimonial use whatever against him in a criminal trial. “But any criminal trial use against a defendant of his involuntary statement is a denial of due process of law.” (Emphasis in original.) Mincey v. Arizona, 437 U. S. 385, 398. Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled. The Fifth and Fourteenth Amendments provide a privilege against compelled self-incrimination, not merely against unreliable self-incrimination. Balancing of interests was thought to be necessary in Harris and Hass when the attempt to deter unlawful police conduct collided with the need to prevent perjury. Here, by contrast, we deal with the constitutional privilege against compulsory self-incrimination in its most pristine form. Balancing, therefore, is not simply unnecessary. It is impermissible. The Superior Court of New Jersey, Appellate Division, correctly ruled that a person’s testimony before a grand jury under a grant of immunity cannot constitutionally be used to impeach him when he is a defendant in a later criminal trial. Accordingly, the judgment is affirmed. It is so ordered. At that time a New Jersey statute provided as follows: “If any public employee testifies before any court, grand jury or the State Commission of Investigation, such testimony and the- evidence derived therefrom shall not be used against such public employee in a subsequent criminal proceeding under the laws of this State; provided that no such public employee shall be exempt from prosecution or punishment for perjury committed while so testifying.” New Jersey Public Employees Immunity Statute, N. J. Stat. Ann. § 2A:81-17.2a2 (West 1976). Portash has not contended that the indictment was based on information disclosed by or “derived” from his immunized testimony. Before trial he did move for dismissal of the indictment on two grounds. First, he argued that the course of dealings between himself and the prosecution established an agreement that he would not be prosecuted so long as he cooperated with the State. Second, he contended that he had impermis-sibly been forced to incriminate himself by providing certain employment records to the grand jury. The trial court rejected both arguments; neither is urged here. We read the state-court opinion as resting its judgment unambiguously and exclusively on the Federal Constitution. The court said: “The immunity device, however, will only be deemed a sufficient answer to a claim of privilege if the scope of immunity afforded is commensurate in all respects with the privilege against self-incrimination which it replaces. United. States v. Calandra, 414 U. S. 338, 346 . . . (1974); Kastigar v. United States, 406 U. S. 441, 459 . . . (1972).” 151 N. J. Super., at 205, 376 A. 2d, at 953. Both Calandra and Kastigar were, of course, federal constitutional decisions. The court discussed several other federal cases in the course of its opinion, and nowhere indicated any reliance on principles of state constitutional or common law. Lefkowitz v. Newsome, 420 U. S. 283, was another case where provisions of state law allowed federal review that may not otherwise have been available. There, New York law allowed a defendant to appeal defeat of a motion to suppress even though he later pleaded guilty. The Court held that because the State recognized such a procedure, a state prisoner who had pleaded guilty could assert his Fourth and Fourteenth Amendment claim in a federal habeas corpus proceeding, even though federal habeas corpus relief would not generally have been available to one who had pleaded guilty. A similar situation existed in Wardius v. Oregon, 412 U. S. 470. The Court held in that case that state notice-of-alibi requirements could be enforced only if the State provided reciprocal discovery rights for the defendant. The defendant in that case had not given a notice of alibi. The State argued that he could not assert his constitutional claim, because he should have given his notice of alibi and then argued that the State had to grant him reciprocal discovery. The Court rejected that argument, and held that he need not give notice to raise his constitutional claim. The Murphy ease dealt with the problem of dual sovereignty. The issue was whether a State could grant constitutionally sufficient immunity if another jurisdiction could use the immunized testimony in a prosecution. The Court proceeded on the premise that a State is required to provide at least use immunity, and held that such immunity would have to be honored by the Federal Government. See Kastigar v. United States, 406 U. S. 441, 455-459. See Shapiro v. United States, 335 U. S. 1, 6 n. 4, for a list of the federal statutes that provided transactional immunity. The Court in both the Harris and Hass cases relied on Walder v. United States, 347 U. S. 62, a case in which the Court held that the Fourth Amendment’s exclusionary rule does not prevent the use of unconstitutionally seized evidence to impeach a defendant’s credibility. We express no view as to whether possibly truthful immunized testimony may be used in a subsequent false-declarations prosecution premised on an inconsistency between that testimony and later, nonimmunized, testimony. That question will be presented in Dunn v. United States, No. 77-6949, cert. granted, 439 U. S. 1045. There is discussion in the briefs of the parties regarding the admissibility of statements made by Portash during pre-indictment negotiations with the state prosecutors. We do not understand the opinion of the state appellate court to have dealt with this issue, and nothing said in this opinion bears on it. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_respond1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). PHILLIPS PETROLEUM CO. et al. v. JENKINS. No. 10859. Circuit Court of Appeals, Eighth Circuit. June 28, 1937. Rayburn L. Foster, of Bartlesville, Okl. (R. H. Hudson, of Bartlesville, Okl., Marsh & Marsh and Mahony & Yocum, all of El Dorado, Ark., and Franklin E. Kennamer, Jr., of Tulsa, Okl., on the brief), for appellants. Robert C. Knox, of El Dorado, Ark. (L. B. Smead, of Camden, Ark., and J. V. Spencer, of El Dorado, Ark., on the brief), for appellee. Before WOODROUGH, THOMAS, and FARIS, Circuit Judges. WOODROUGH, Circuit Judge. In June, 1934, Roy O. Jenkins, an employee of the Phillips Petroleum Company residing in Arkansas, sued that company and Joe H. Myers, a locally resident coemployee, in the circuit court of Ouachita county, Ark., for damages for personal injury occasioned by negligence and obtained judgment for $50,000, which was modified on appeal to the Supreme Court of the state in May, 1935, by reducing the amount to $30,000. A further appeal to the Supreme Court of the United States resulted in affirmance of the judgment in that amount. 297 U.S. 629, 56 S.Ct. 611, 80 L.Ed. 943. The petroleum company and the bonding companies which had become liable on supersedeas bonds brought this suit in equity in the federal District Court, in May, 1936, to obtain relief from the judgment, claiming, (1) that they were entitled to have Jenkins enjoined from executing his judgment because he had obtained it by the practice of extrinsic fraud, in that he had fraudulently simulated an injury which he had not received and a disability, when he was not disabled at all, but only pretended to be, and in that he had conspired with a doctor who had instructed and helped him so that he was able to and did deceive physicians who examined him and testified in the case, and deceived the court and jury into unjustified belief that he had been seriously injured; and, (2), that they were entitled to be relieved from the judgment under the provisions of the statutes of Arkansas on the ground of newly discovered evidence set out in the bill. The coemployee, Joe H. Myers, who had become a resident of Oklahoma, intervened in the case and joined in the allegations, and prayer of the plaintiffs. On the trial of the equity suit findings of fact and conclusions of law were made favorable to Jenkins and the suit was dismissed. The petroleum company, Joe H„ Myers, and the bonding companies, have appealed. The points argued on the appeal under the assignments of error are (1) that the findings of the trial court are against the weight of the evidence; (2)> that “the false history related by Jenkins, to examining physicians and their conclusions based thereon, together with his false testimony before the court and jury as to the extent of his injury constituted extrinsic fraud warranting a federal court of equity in enjoining the enforcement of the judgment”; and (3) that “even though the fraud established by the evidence should be deemed intrinsic and not extrinsic, the substantive right to relief against such judgment, created by the statutes of Arkansas, should be applied and enforced in the federal court. * * * ” The findings of the trial court were: “Finding of Fact No. 1. “On April 5, 1934, the defendant, R. O. Jenkins, and Intervener Joe H. Myers, while engaged in the performance of their duties as employees of plaintiff Phillips Petroleum Company, were carrying a joint of line pipe, each having one end of said pipe on his shoulder, the defendant Jenkins carrying the front end of said pipe and walking ahead, and intervener Myers carrying the rear end of said pipe and walking behind. Before they had traversed the required distance, Myers suddenly and without warning shifted his end of the pipe from one shoulder to the other, jerking Jenkins off balance, causing him to fall, and the end of the pipe which he was carrying struck him in the small of his back, actually injuring him — the nature and extent of such injury being one of the issues tried in the State Court. Immediately after said injury Jenkins was taken by another employee to a physician who was in the employ of Phillips Petroleum Company, and said Physician caused an X-ray picture of defendant’s spinal column to be made, and for a week or two thereafter treated Jenkins, when his case was transferred to another physician, who was also employed by Phillips Petroleum Company, and who sent Jenkins to a hospital where he was confined under the care of said second physician for some ten days or two weeks, and thereafter for several weeks Jenkins was under the treatment of said second physician. “Finding of Fact No. 2. “On June 16, 1934, Jenkins filed suit in the Circuit Court of Ouachita County, Arkansas, against Phillips Petroleum Company and Joe H. Myers, alleging that on account of negligence of Myers he had suffered the following injuries: “(a) That first and second lumbar vertebrae were separated with attendant severe impact and concussion of the spinal cord in the region of the first and second lumbar vertebrae, and the ligaments in the region of the spinal cord near the first and second lumbar vertebrae were bruised and torn with attendant adhesions, bleeding and swelling; all of which caused severe pressure upon the spinal cord and resulted in Myeletic softening of the lower end of the spinal cord, causing injury and degeneration of the nerves of the spinal cord and the nerves running therefrom, with resulting motor and sensory paresis, loss of sensation in the lower extremities and loss of free locomotion in the legs, back and hips of the plaintiff and causing partial paralysis of the hips, legs-and back of the plaintiff of the progressive type which will gradually grow worse until complete paralysis will exist. “(b) A severe injury to the Sacro Iliac joint with contusions of the Sacro Iliac surfaces, resulting in a traumatic Sacro Iliac Arthritis; “(c) A severe injury to the pelvic bone; his right pelvic is tilted and the muscles and ligaments of the region thereof are strained, torn and bruised; “(d) A curvature of the spine; “(e) A total loss of his sexual functions and powers; “(f) The bladder and rectal centers of the plaintiff are involved; the control of the plaintiff over the action of his bowels and the passing of his urine are impaired; this condition will progress until plaintiff will completely lose control of the action of his bowels and the passing of urine and will lose complete control of the impulse to urinate or to stool; “(g) That on account of his said injuries the health of the plaintiff has become greatly impaired, and his nervous system has been damaged and impaired; that all of his injuries are permanent and progressive and will continually grow worse; that on account of his said injuries the plaintiff suffered severe physical pain and mental anguish, and will continue so to suffer for the balance of his lifetime; “Phillips Petroleum Company in due time filed its separate answer, and among other things denied that Jenkins was injured in any manner and to any extent whatever, and particularly denied that he had received any of the injuries set out in his complaint. Joe H. Myers, thereupon adopted the answer of his co-defendant Phillips Petroleum Company. “Finding of Fact No. 3. “On June 6th, 1934, Jenkins was examined by Dr. J. B. Jameson and R. B. Robbins of Camden, Arkansas, and on September 24, 1934, he was examined by Dr. Leslie A. Purifoy of El Dorado, Arkansas. The purpose of said examinations was to enable said physicians to testify in the trial, and each of them did appear in the State Court, and testify as witnesses on behalf of Jenkins. Since said trial in the State Court Dr. Purifoy has died, but both Dr. Jameson and Dr. Robbins testified at the hearing in this Court. “At the time of said examination by said physicians, the defendant Jenkins gave to each of them a history of his case, and made physical responses to, and answers to questions asked him concerning, certain tests of the reflexes made by said physicians during the course of said examinations. “An X-ray picture of the spinal column, showing the first and second vertebrae of the lumbar region, was taken-by Dr. Jame-son, who testified at the trial in the State Court, and also here, that said picture showed a separation between these vertebrae. “Plaintiffs and intervener have failed to show by a preponderance of the testimony that defendant made any false statements or answers to said physicians, 'or either of them, or that he could, and did, control his responses to the various tests made upon him, so that said physicians, or either of them, were misled or deceived, and induced to believe that he had suffered an injury which did not exist in fact. On the contrary Dr. Jameson and Dr. Robbins both testified at the hearing in this court, and Dr. Jameson so testified in the trial in the State Court, that disregarding all subjective symptoms and relying solely on the objective symptoms, they could and did reach the conclusion that defendant had suffered an injury to his spinal cord. “Finding of Fact No. 4. “On September 26, 1936, (the day before the commencement of the trial in the State Court: The defendant Jenkins, at the request of attorneys for plaintiffs Phillips Petroleum Company and Intervener Joe H. Myers, submitted to an examination by Drs. Fletcher of Hot Springs, Mahony and White of El Dorado, Arkansas (Dr. White being the second physician of Phillips Petroleum Co. who had previously treated Jenkins). Said physicians caused several X-ray pictures to be taken by Dr. Levine and Jenkins was thoroughly examined by the other three physicians. During the course of said examination Jenkins was asked and answered several questions touching the history of his case, and made physical responses to, and answers to questions asked him concerning, certain tests of the reflexes made by said physicians during the course of said examination. “Plaintiffs and Intervener have failed to show by a preponderance of the testimony’: “(a). That the statements and answers made by Jenkins to said physicians were false; “(b). That Jenkins could and did so control the physical responses to the tests made, that such responses did not correctly reflect his true reaction to said tests. “Plaintiffs and Intervener have failed to establish by a preponderance of the testimony that by reason of any false statement made or answer given by Jenkins to said physicians or by reason of any false response which he simulated to any test made upon him by them, they or any of them were cartsed to arrive at the conclusion that he was, or might be, suffering from any of the injuries as set out in his complaint, but on the contrary the court finds that as a result of said examination said physicians, and each of them, arrived at the conclusion that Jenkins had not suffered any of the injuries set out in his complaint, and said physicians immediately after said examination so reported to the attorneys for plaintiffs and intervener, and appeared as witnesses and so testified before the jury. “Finding of Fact No. 5. “The evidence fails to show that either plaintiff Phillips Petroleum Company or intervener Joe H. Myers were prevented by fraud or concealment practiced upon them, their attorneys or witnesses, by Jenkins, or any one for him, from presenting any defense which they, or either of them, may have had to the action in the State Court. “Finding of Fact No. 6. “The evidence fails to show that either Jenkins, or any one acting for him, was guilty of extrinsic fraud practiced in the procurement of the judgment of the State Court. “Finding of Fact No. 7. “The allegations upon which plaintiff and intervener base their prayer for equitable relief here may be summarized as follows: That Jenkins fraudulently simulated an injury which had no basis in fact, and that he fraudulently concealed his true condition from .plaintiff and intervener. The court finds that one of the defenses interposed by the plaintiff and intervener in the State Court was that Jenkins was not in any manner injured, and that he was fraudulently simulating an injury which had no basis in fact. And the court finds that such defense was tried in the State Court. “Finding of Fact No. 8. “Plaintiff and intervener have failed to establish by preponderance of the evidence that there was a conspiracy between Jenkins and Dr. Henry as alleged in the Bill of Complaint. “Finding of Fact No. 9. “The evidence offered by plaintiffs and intervener in support of the second count of the complaint, which relates to Newly Discovered Evidence, would not be sufficient to support a petition for such relief filed in the State Court under the provisions of section 1316 of Crawford & Moses Digest, for the reasons that such evidence (1) tends only to impeach the testimony Qf Jenkins (2) relates only to the measure of damages and (3) would not likely change the result. “Finding of Fact No. 10. “All issues of fact not specifically covered by Findings of Fact No. 1 to 9 inclusive above are decided in favor of the defendant and against the plaintiffs and intervener.” In our study of the evidence we have been aided by the thorough analysis and discussion at the bar and in the briefs. To set out all of the testimony would be unreasonable and to omit parts would obscure the claims and the arguments upon them. We have reached the conclusion that .the trial court has set out the substantial and controlling facts in its findings and that the findings are in conformity with the preponderance of the evidence. In the preparation of the bill in equity the allegations were assimilated closely to the facts which this court found sufficient to justify equitable relief against a state court judgment obtained by fraud in the case of Chicago, Rock Island & Pacific Ry. Co. v. Callicotte (C.C.A.) 267 F. 799, 16 A.L.R. 386. The effort of the plaintiffs on the trial of this case was to make proof that would bring their case within the doctrine laid down in that case. But we think they failed to sustain the burden under the applicable rules of law. Such rules of law which the trial court found applicable to the case and determinative of the insufficiency of the testimony for the plaintiffs were declared by the trial court as follows: “Conclusion of Law No. 1. “The acts for which a Court of the United States, sitting in equity, will on account of fraud deprive a party of the benefit of a judgment rendered, between the same parties, by a State Court of competent jurisdiction have relation to frauds, extrinsic or collateral, to the matter tried by the State Court, and not to a fraud in the matter on which the judgment was rendered. Extrinsic fraud operates not upon matters pertaining to the judgment itself, but relates to the manner in which it is procured. Extrinsic fraud is any fraudulent conduct of the successful party which is practiced outside of an actual adversary trial, and which is practiced directly and affirmatively upon the defeated party, or his agents, attorneys or witnesses, whereby such defeated party is prevented from presenting fully and fairly his side of the case. “Conclusion of Law No. 2. “Courts of the United States, sitting in equity, will not deprive a party of the benefit of a judgment, rendered between the same parties, by a State Court of competent jurisdiction, on account of intrinsic fraud, such as forged instruments, or perjured testimony, introduced as evidence in the actual adversary trial, or other fraudulent conduct which was practiced during the course of the trial, but which had no effect to mislead the defeated party to his injury after he announced that he was ready to proceed with the trial, and which did not prevent such party from fully presenting his side of the case. “Conclusion of Law No. 4. “Jenkins was under no duty to furnish' evidence to plaintiff and intervener to weaken his ówn case. The plaintiff and intervener had no reason to depend upon Jenkins for evidence to assist them in proving their case, other than what might be disclosed by a medical examination. “Conclusion of Law No. 5. “A defense cannot be set up in equity which has already been fully and fairly tried at law; and this court cannot by way of review, or otherwise, allow plaintiff and intervener to relitigate issues which have been fully and fairly tried and determined against them. It must appear that the fraud charged really prevented plaintiff and intervener from making a full and fair defense, and, since such fact does not appear, but on the contrary the record discloses that the State Court had before it the same issue of fraud as is presented here, the proof of the ultimate fact, to-wit; that the judgment was obtained by fraud fails.” We find no error in the conclusions of law so stated. Continental Nat. Bank v. Holland Banking Co. (C.C.A.8) 66 F.(2d) 823, 835; Toledo Scale Co. v. Computing Scale Co. (C.C.A.7) 281 F. 488, 494, affirmed 261 U.S. 399, 43 S.Ct. 458, 67 L.Ed. 719; Moffett v. Robins, (C.C.A.10) 81 F.(2d) 431; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Vance v. Burbank, 101 U.S. 514, 519, 25 L.Ed. 929; Estes v. Lucky, 133 Ark. 97, 102, 201 S.W. 815; Bank of Pine Bluff v. Levi, 90 Ark, 166, 118 S.W. 250. The trial court also made the following declaration of law: “Conclusion of Law No. 3. “Courts of the United States, sitting in equity, will not deprive a party of the benefit of a judgment, rendered between the same parties, by a State Court of competent jurisdiction, nor require such party to submit to a new trial, where the bill of complaint and the evidence in support thereof tends only to present a case of ‘Newly Discovered Evidence,’ unmixed with extrinsic fraud.” On this point the appellants contend the court should have declared the law: “Under the provisions of sections 6290, 6292, 1311 and 1316, Crawford & Moses’ Digest of the Statutes of Arkansas, this court has power to and should compel the defendant to submit to a new trial or enjoin the enforcement of the state court judgment, even though the proof shows that the judgment was procured by intrinsic and not extrinsic fraud.” The relevant provisions of the Arkansas statutes, as found in Crawford & Moses’ Digest of the Statutes of Arkansas are appended in the footnote. The position of appellants is that the Arkansas statutes create a substantive right to relief against a judgment obtained by intrinsic, as distinguished from extrinsic fraud, to be secured in an independent action, and, therefore, the same should be applied and enforced in the federal courts. We think the law was stated with substantial accuracy in the declaration No. 3 of the trial court, supra, and that appellants' contention should not be sustained, because: (1) The proceedings to obtain a new trial for newly discovered evidence or intrinsic fraud under the Arkansas statutes are not, in any broad or general sense, an independent action, but they are incidental or supplemental proceedings tantamount to a bill of review for newly discovered evidence in an equity case, and the questions that are brought forward for determination arise from the pleadings, proceedings, and adjudication in the former case. 1 Freeman on Judgments (5th Ed.) § 209, p. 405; Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Milwaukee & Minn. R. R. Co. v. Soutter, 2 Wall. (69 U.S.) 609, 17 L.Ed. 886; Killion v. Killion, 98 Ark. 15, 135 S.W. 452. (2) Section 265 of the Judicial Code (28 U.S.C.A. § 379) prohibits the federal courts from enjoining or staying proceedings in any court of a state except in cases where such injunction may be authorized by any law relating to bankruptcy. The prohibition extends not only to the proceedings in a state court up to and including the final judgment, but to the entire proceedings from the commencement of the suit until the execution issued on the judgment or decree. Wayman v. Southard, 10 Wheat. 1, 6 L.Ed. 253; Fenwick Hall Co. v. Old Saybrook (C.C.) 66 F. 389; Leathe v. Thomas (C.C.A.) 97 F. 136; Security Trust Co. v. Union Trust Co. (C.C.) 134 F. 301; Union Pac. R. Co. v. Flynn (C.C.) 180 F. 565; W. E. Stewart Land Co. v. Arthur (C.C.A.) 267 F. 184; Higgins v. California Prune Co., etc., Growers (C.C.A.) 282 F. 550, reversed on other grounds (C.C.A.) 3 F.(2d) 896; Hill v. Martin, 296 U.S. 393, 56 S.Ct. 278, 80 L.Ed. 293. One of the recognized exceptions to the prohibition of this statute is a suit to enjoin a judgment obtained by extrinsic fraud practiced by the successful party on his adversary, preventing the latter from making a full defense. United States v. Throckmorton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93; Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870; Chicago, R. I. & P. Ry. Co. v. Callicotte, supra; Continental Nat. Bank v. Holland Banking Co., supra; and other exceptions are also recognized. See note 28 U.S.C.A. § 379. But we cannot find any suggestion in any of the reports that a bill for a new trial for newly discovered evidence is one of the exceptions. We think the section precludes the awarding of such relief in the federal courts. See Henrietta Mills v. Rutherford County, 281 U.S. 121, 127, 50 S.Ct. 270, 272, 74 L.Ed. 737; Engelhard v. Shroeder (C.C.A.) 278 F. 341, affirmed 258 U.S. 610, 42 S.Ct. 382, 66 L.Ed. 789. (3) Strong proof that federal courts have considered themselves without power to grant new trials for newly discovered evidence in cases which have been brought to judgment in state courts is to be found in the meticulous care with which such federal courts have always distinguished between extrinsic and intrinsic fraud. Engelhard v. Shroeder, supra; Luikart v. Farmers’ Lumber Co. (C.C.A. 10) 38 F.(2d) 588, 589; Bailey v. Willeford (C.C.A.4) 136 F. 382, 385; International Indemnity Co. v. Peterson (D.C.Minn.) 6 F.(2d) 230, 232; Marshall v. Holmes, supra; Barrow v. Hunton, 99 U.S. 80, 25 L.Ed. 407. It is not to be assumed that jurisdiction could be conferred on the federal courts merely by changing a description from “intrinsic fraud” to “newly discovered evidence.” The appellants have relied strongly upon Cowley v. Northern Pac. R. Co., 159 U.S. 569, 16 S.Ct. 127, 130, 40 L.Ed. 263. The federal court was there held to have power to grant relief against a judgment obtained by fraud in the territorial court of Washington Territory,-and procedure similar to that provided by the Arkansas statutes was held to be the proper and applicable procedure in the case after it had been transferred to the federal court of the new state of Washington. But it is evident from consideration of the report of the case in (C.C.) 46 F. 325, read in connection with the opinion of the Supreme Court, that the act of Congress which granted statehood to the territory operated, under the circumstances shown, to “transfer” the whole case, that is, the original suit and the proceedings to set aside the judgment for fraud, to the federal court. See 25 United States Statutes at Large 683, § 23. Therefore, the federal court had jurisdiction of the whole case, including the supplemental and incidental proceedings to obtain a new trial, that it would have had if the original suit had been brought in the federal court in the first instance. We do not find the case to be authority for the doctrine contended for by the appellants. We "think, on the contrary, that the opinion made plain the distinction between the power of the federal courts to relieve against state court judgments obtained by extrinsic fraud and against those obtained by intrinsic fraud. The court said: “It was said by Mr. Justice Bradley, in delivering the opinion of the court, that the question presented was whether the proceeding was a separate suit, or a supplementary proceeding so connected with the original suit as to form an incident to it, and substantially a continuation of it. ‘If the proceeding is merely tantamount to the common-law process of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review, or an appeal, it would belong to the latter category, and the United States court could not properly entertain jurisdiction of the case.” National Surety Company v. State Bank of Humboldt (C.C.A.) 120 F. 593, 61 L.R.A. 394, and Commissioners of Road Improvement District No. 2. v. St. Louis Southwestern Ry. Co., 257 U.S. 547, 42 S.Ct. 250, 66 L.Ed. 364, were cited and have been considered, but they do not sustain the position of appellants. We find no error in the proceedings or decree of the district court. Affirmed. “1311. Causes for. A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury or a decision by the court. The former verdict or decision may be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: * * * “Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” “1316. Grounds discovered after term. Where grounds for new trial are discovered after the term at which the verdict or decision was rendered, the application may be made by petition filed with the clerk not later than the second term after the discovery, on which summons shall issue, as on other complaints, requiring the adverse party to appear and answer it on or before the first day of the next term. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court. The evidence may either be by depositions or by witnesses examined in court. But no such application shall be made more than three years after the final judgment was rendered. Civil Code, § 375.” “6290. Grounds for vacating or modifying. The court in which a judgment or final order has been rendered or made shall have power, after the expiration of the term, to vacate or modify such judgment or order: “First. By granting a new trial for the cause, and in the manner prescribed in § 1316. * * * “Fourth. For fraud practiced by the successful party in the obtaining of the judgment.” “6292. Procedure to vacate or modify. The proceedings to vacate or modify the judgment or order on the grounds mentioned in the fourth, fifth, sixth, seventh and eighth subdivisions of § 6290 shall be by complaint, verified by affidavit, setting forth' the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On the complaint, a summons shall issue and be served, and other proceedings had as in an action by proceedings at law. Id. § 573.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_trialpro	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". STATE OF MINNESOTA, by its Commissioner of Public Welfare, Arthur E. NOOT, Petitioner, v. Margaret M. HECKLER, Secretary, and the United States Department of Health and Human Services, Respondents. STATE OF MINNESOTA, by its Commissioner of Public Welfare, Arthur E. NOOT, Appellee, v. Margaret M. HECKLER, in her official capacity as Secretary of the United States Department of Health and Human Services, Appellant. Nos. 82-1164, 82-2297. United States Court of Appeals, Eighth Circuit. Submitted Nov. 8, 1982. Decided Sept. 30, 1983. Warren Spannaus, Atty. Gen., State of Minn., Alan T. Held, Sp. Asst. Atty. Gen., St. Paul, Minn., for petitioner. Susanne M. Lee, Dept, of Health and Human Services, Washington, D.C., for respondents; Juan A. del Real, Gen. Counsel, Ann T. Hunsaker, Asst. Gen., Sarah W. Wilcox, Dept, of Health and Human Services, of counsel. Charles A. Miller, J. Peter Byrne, Covington & Burling, Washington, D.C., for the States of Ala., Conn., Md., Mich., Mo., N.Y., Okl., R.I., W.Va., Wis., amici curiae. Hubert H. Humphrey, III, Atty. Gen., State of Minn., Alan T. Held, Sp. Asst. Atty. Gen., St. Paul, Minn., for State of Minn. Before LAY, Chief Judge, ROSS and FAGG, Circuit Judges. LAY, Chief Judge. These cases were consolidated for purposes of resolving issues of subject matter jurisdiction and conflicting interpretations of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (1976 & Supp. V 1981). The State of Minnesota contests a decision of the Secretary of the United States Department of Health and Human Services (HHS) disallowing federal financial participation to the State under the Medical Assistance Program (Medicaid) for costs incurred in three community residential facilities. The facilities were determined by the Secretary to be “institutions for mental diseases” (IMDs) and thus were not qualified for partial federal reimbursement of medical costs for individuals eligible for Medicaid. Beginning in 1973, the State of Minnesota paid Medicaid claims for individuals receiving services in the Andrew Care Home, the Birchwood Care Home, and the Hoikka House. The three community residential care homes had been certified as “intermediate care facilities” (ICFs). “Intermediate care facility services” for eligible individuals under 65 are reimbursable under the Act other than such services provided in an institution for tuberculosis or an “institution for mental diseases.” See 42 U.S.C. § 1396d(a)(15), (18)(B) (1976). The residents of these three homes included a majority of individuals with mental illness diagnoses. During the quarters ending September 30,1977 through June 30,1978, Minnesota claimed and was paid $896,159 in federal financial participation for services provided to the Medicaid recipients at these three facilities. In November 1978 the HHS Health Care Financing Administration (HCFA) submitted an audit report which recommended disallowance of the $896,159 claim on the ground that these facilities were IMDs. The agency employed unpublished interpretive guidelines to determine if the “overall character” of the facilities fit the regulatory definition of an IMD as being “primarily engaged in providing diagnosis, treatment or care of persons with mental diseases.” See 42 C.F.R. § 435.1009(e) (1982); see also id. § 440.-140(a)(2) (1982). As a result, the Secretary disallowed the State’s claim. The State petitioned the HHS Departmental Grant Appeals Board for a review of the decision. Consolidating the petition with requests by the States of Connecticut, California, and Illinois to review similar disallowances, the Board upheld the agency decision. Departmental Grant App.Bd. Nos. 79-52-MN-HC, 79-89-MN-HC, 80-44-IL-HC, 80-150-CT-HC, 80-184-CA-HC (Nov. 30, 1981). HHS recovered the full amount of these funds paid to Minnesota by offsetting federal financial participation in a supplemental grant to the State. Minnesota filed a petition for direct review of the final agency order with this court; such action was taken to protect the right of review in the event the dispute was determined to be a plan conformity matter under 42 U.S.C. § 1316(a)(3) (1976 & Supp. V 1981), and not a disallowance under 42 U.S.C. § 1316(d) (1976 & Supp. Y 1981). The State also sought review of the Board’s decision in the United States District Court for the District of Minnesota by filing an action for declaratory and injunctive relief as well as restoration of its grant money withheld by HHS. (d) Whenever the Secretary determines that any item or class of items on account of which Federal financial participation is claimed under title ... XIX .... shall be disallowed for such participation, the State shall be entitled to and upon request shall receive a reconsideration of the disallowance. The district court granted summary judgment in favor of the State of Minnesota, holding that HHS acted arbitrarily, capriciously, and outside the scope of its authority; it ordered HHS to return to the State the disallowed funds. Minnesota v. Schweiker, No. 4-82-155, slip op. at 14 (D.Minn. Aug. 25,1982). HHS now appeals this decision. The two cases were consolidated to resolve the jurisdictional issues and the merits. I. Plan Conformity or Disallowance. A fundamental question is whether this dispute involves a noncompliance question or a disallowance. Both the Secretary and the State urge that the matter involves a disallowance and therefore this court has no jurisdiction to directly review the Board’s decision. We agree. Recent decisions from other circuits have taken divergent approaches to assessing the nature of Medicaid controversies. The First Circuit employs a functional analysis which examines three criteria: (1) whether the matter could comfortably fit within the plan conformity language of 42 U.S.C. § 1396c (1976); (b) whether the broad nature of the dispute points to characterization as a conformity issue; and (3) what procedures and label the Secretary has chosen, “not as definitive but as entitled to some respect.” See Massachusetts v. Departmental Grant Appeals Board, 698 F.2d 22, 27-30 (1st Cir.1983). Cf. New Jersey v. Department of Health and Human Services, 670 F.2d 1262, 1272 (3d Cir.1981) (New Jersey I) (court must independently evaluate underlying substance of dispute so that court of appeals’ jurisdiction is not contingent upon Secretary’s unfettered discretion); State Department of Public Welfare v. Califano, 556 F.2d 326, 330 (5th Cir.1977), cert. denied, 439 U.S. 818, 99 S.Ct. 78, 58 L.Ed.2d 108 (1978) (court should review Social Security Act, legislative history, and circumstances of claim to see what label best serves purposes of the act and the equities of the situation). In contrast, the Seventh Circuit found the functional approach “complicated and therefore uncertain in application — a serious weakness in a jurisdictional test.” Illinois v. Schweiker, 707 F.2d 273, 278 (7th Cir.1983). Instead, it adopted a literal test which allows HHS’ choice of the plan conformity or disallowance label and procedures to control. Id. Cf. Connecticut v. Schweiker, No. 82-4023 (2d Cir. April 20, 1982) (without explanation, court of appeals dismissed for lack of jurisdiction a petition for direct review of alleged plan conformity issue; Secretary had denominated the dispute as a disallowance); Department of Public Health v. Departmental Grant Appeals Board, 672 F.2d 916 (6th Cir.1981) (same); Washington Department of Social and Health Services v. Schweiker, No. 81-7414 (9th Cir. Sept. 30, 1981) (same). Although some deference is to be accorded the Secretary’s opinion on these jurisdictional fact issues, we find the functional test in Massachusetts v. Departmental Grant Appeals Board, 698 F.2d at 27—30, is more in accord with the traditional role of federal judicial review which mandates judicial inquiry as to congressional intent, jurisdiction, and the legality of federal administrative actions. Accord New Jersey I, 670 F.2d at 1272. The underlying nature of this controversy stems from the discrete reason that three nursing homes were decertified and thus did not qualify for federal funding. In this regard, the (^strict court correctly observed “[t]his dispute does not concern the validity of Minnesota’s Medicaid plan or its overall administration.” Minnesota v. Schweiker, slip op. at 4-5. Plan conformity issues under the statute, sections 1316(a)(3) and 1396c, generally relate to compliance questions that have a broad impact on the overall state program. We cannot say, under the plan conformity specifications of section 1396c(2), that the State in the administration of its Medicaid plan failed to comply substantially with the provisions of 42 U.S.C. § 1396a (1976 & Supp. Y 1981). The decertification here is basically rooted in a failure to comply with an agency interpretive guideline. In addition, the claim arises out of the disallowance procedures involving a specific audit, and only a retroactive, not prospective, sanction was imposed. We thus conclude that the dispute clearly relates to a disallowance rather than a conformity issue. Accord Connecticut v. Schweiker, No. 82-4023 (2d Cir. Apr. 20,1983); Connecticut v. Schweiker, 557 F.Supp. 1077, 1079 & n. 5 (D.Conn. 1983). II. Jurisdiction of District Court. Although section 1316(a)(3) grants a state dissatisfied with a plan conformity decision the right to direct review in a court of appeals, the provision for disallowances, section 1316(d), is silent as to the availability of judicial review for such disputes. We agree with the courts that have found that disallowance decisions under section 1316(d) are judicially reviewable. Illinois v. Schweiker, 707 F.2d at 275-277; Alameda v. Weinberger, 520 F.2d 344, 347-48 (9th Cir.1975); Colorado Department of Social Services v. Department of Health and Human Services, 558 F.Supp. 337, 347-48 (D.Colo.1983); Connecticut v. Schweiker, 557 F.Supp. at 1079. Cf. Solomon v. Califano, 464 F.Supp. 1203 (D.Md.1979) (court reviewed disallowance decision without discussing jurisdiction); Georgia v. Califano, 446 F.Supp. 404 (N.D.Ga.1977) (same). Contra State Department of Public Welfare v. Califano, 556 F.2d 326, 329 n. 4, 332 (5th Cir.1977), cert. denied, 439 U.S. 818, 99 S.Ct. 78, 58 L.Ed.2d 108 (1978) (dictum). Although the district court has jurisdiction to review this disallowance, the court’s power is limited to granting prospectively-oriented declaratory relief. We must vacate the district court’s money award restoring past disallowance funds since jurisdiction for this claim is exclusively in the United States Claims Court. The exclusive jurisdiction of the Claims Court applies to monetary claims in excess of $10,000 against the United States and its agencies. 28 U.S.C. § 1491 (1976 & Supp. V 1981). Since 1972, the Claims Court also can grant limited equitable relief collateral to a monetary award in order to resolve an entire controversy. See id.; Polos v. United States, 556 F.2d 903, 906 (8th Cir.1977); Melvin v. Laird, 365 F.Supp. 511, 516-20 (E.D.N.Y.1973). noncompliance was only with a federal requirement in a “program instruction”); and Solomon v. Califano, 464 F.Supp. 1203, 1206-08 (D.Md.1979) (plan conformity found although noncompliance was only with state’s plan). If the declaratory or injunctive relief a claimant seeks has significant prospective effect or considerable value apart from merely determining monetary liability of the government, the equitable relief sought is paramount and the district court may assume jurisdiction over the nonmonetary claims. See Giordano v. Roudebush, 617 F.2d 511, 514-15 (8th Cir.1980); Mega-pulse, Inc. v. Lewis, 672 F.2d 959, 971 (D.C. Cir.1982); Rowe v. United States, 633 F.2d 799, 801-02 (9th Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981); cf. Sellers v. Brown, 633 F.2d 106, 108 (8th Cir.1980). The fact that a suit for nonmonetary relief in the district court may also provide a basis for a grant of money damages against the United States is not a sufficient reason to foreclose district court jurisdiction. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 71 n. 15, 98 S.Ct. 2620, 2629 n. 15, 57 L.Ed.2d 595 (1978); Laguna Hermosa Corp. v. B.E. Martin, 643 F.2d 1376, 1379 (9th Cir.1981); Melvin v. Laird, 365 F.Supp. at 520; see also Beller v. Middendorf, 632 F.2d 788, 799 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981). However, the power of the district court in these types of cases is limited; sovereign immunity of the United States is waived in the district court under 5 U.S.C. § 702 (1982) only for claims against a federal agency or its officers seeking relief “other than money damages.” See United States v. Mitchell,-U.S.-,-& n. 32, 103 S.Ct. 2961, 2973 & n. 32, 77 L.Ed.2d 580 (1983); Jaffee v. United States, 592 F.2d 712, 718-19 (3d Cir.1979). See generally K. Davis, Administrative Law Treatise § 27.00-.10 (Supp.1980 & 1982). This jurisdictional limitation results in a bifurcation of claims between the district court and the Claims Court, because the district court is unable to grant monetary relief on claims over $10,000. See Giordano v. Roudebush, 617 F.2d at 514-15; Laguna Hermosa Corp. v. B.E. Martin, 643 F.2d at 1379 (9th Cir.1981); Rowe v. United States, 633 F.2d at 801-02; Beller v. Middendorf, 632 F.2d at 799; Melvin v. Laird, 365 F.Supp. at 518-19. But of. Woodland Nursing Home Corp. v. Califano, 487 F.Supp. 9, 11-13 (S.D.N.Y.1979) (district court with jurisdiction over nonmonetary claim can exercise pendent jurisdiction over monetary claim to provide a “ ‘common sense solution’ ” for complete relief in one court). Such bifurcation is unavoidable when the Claims Court lacks the power to grant the type of declaratory or injunctive relief sought. See Rowe v. United States, 633 F.2d at 801-02; Shaw v. Pierce, 534 F.Supp. at 738. Contra Woodland Nursing Home Corp. v. Califano, 487 F.Supp. at 11-13. Under the facts involved in this dispute, the disallowance is rooted in the federal agency’s guidelines interpreting the meaning of the statutory phrase “institution for mental diseases.” The guidelines have an effect upon current and future federal benefits to the State in addition to past federal financial participation. The State estimates that potentially over $10 million in federal funds to the State of Minnesota are at stake here, representing not only past claims collected but other claims foregone when Minnesota stopped submitting further claims after the disallowances in 1978 to avoid risking additional losses. The potential current and future claims foregone dwarf the amount of the disallowance the State seeks to have overturned. Although the Claims Court possesses the jurisdiction necessary to make a legal ruling upon which to base the award of a money judgment, see Pauley Petroleum Inc. v. United States, 591 F.2d 1308,1315, 219 Ct.Cl. 24, 32 (Ct.Cl.), cert. denied, 444 U.S. 898,100 S.Ct. 206, 62 L.Ed.2d 133 (1979), the declaratory relief sought here has conspicuous impact beyond establishing a right to the disallowed funds. The prospective, independent significance of the declaratory relief requested makes it, not the compensatory money payments, the primary relief sought by the State of Minnesota. Therefore the district court had jurisdiction over the non-monetary claims under 28 U.S.C. § 1331 (1976 & Supp. V 1981) and 28 U.S.C. § 2201 (1976 & Supp. V 1981). III. The Merits. In deciding that the three facilities in question were “institutions for mental diseases” (IMD) under agency interpretive guidelines, the HHS’ Departmental Grant Appeals Board reached conclusions of both fact and law. The agency’s formal findings of fact will be upheld if supported by substantial evidence in the record considered as a whole. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971); Volkswagenwerk Aktiengesellsehaft v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968); Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-21 & n. 19, 86 S.Ct. 1018, 1026-27 & n. 19, 16 L.Ed.2d 131 (1966); 5 U.S.C. § 706(2)(E) (1982); see generally K. Davis, supra, §§ 29.01-.11 (1958 & Supp.1980 & 1982). In contrast, the agency’s guidelines interpreting a statutory term and a regulation ultimately involve questions of law which are to be resolved by the court. See Batterton v. Francis, 432 U.S. 416,424-26 & n. 9, 97 S.Ct. 2399, 2404-06 & n. 9, 53 L.Ed.2d 448 (1977); Social Security Board v. Nierotko, 327 U.S. 358, 368-69, 66 S.Ct. 637, 642-43, 90 L.Ed. 718 (1946); White Industries, Inc. v. Federal Aviation Administration, 692 F.2d 532, 534 (8th Cir.1982); 5 U.S.C. § 706 (1982). “Ordinarily, administrative interpretations of statutory terms are given important but not controlling significance.” Batterton v. Francis, 432 U.S. at 424, 97 S.Ct. at 2404; Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). Research Medical Center v. Schweiker, 684 F.2d 599, 602 (8th Cir.1982); see generally K. Davis, supra, § 30.13. As in all cases focusing on statutory construction, we must initially look to the language chosen by Congress. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982); Bread Political Action Committee v. Federal Election Committee, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982). The ordinary meaning of the words used are presumed to express congressional purpose; thus, absent clearly expressed legislative intention to the contrary, the language is regarded as conclusive. American Tobacco Co. v. Patterson, 455 U.S. at 68,102 S.Ct. at 1537. The Medicaid statute defines federal “medical assistance” for needy individuals to include, among other items, “intermediate care facility services (other than such services in an institution for tuberculosis or mental diseases) for individuals who are determined ... to be in need of such care.” 42 U.S.C. § 1396d(a)(15) (1976) (emphasis added). The identical exclusion for services in an IMD is repeated in sections granting medical assistance for “inpatient hospital services” and “skilled nursing facility [SNF] services.” Id. § 1396d(a)(l), (4)(A). A correlating section, however, allows payments for “inpatient hospital services, skilled nursing facility services, and intermediate care facility services for individuals 65 years of age or over, in an institution for tuberculosis or mental diseases.” Id. § 1396d(a)(14) (emphasis added). Additionally, the statute provides for funds for “inpatient psychiatric hospital services for individuals under age 21.” 42 U.S.C. § 1396d(a)(16) (1976 & Supp. V 1981). The statutory definition of “medical assistance” clarifies the prohibition against payments for individuals between age 21 and 65 in an IMD: “[EJxcept as otherwise provided in paragraph (16) [inpatient psychiatric services for individuals under age 21], such term [“medical assistance”] does not include ... any such payments with respect to care or services for any individual who has not attained 65 years of age and who is a patient in an institution for tuberculosis or mental diseases.” Id. § 1396d(a)(18)(B) (emphasis added). Of significance here is the statutory definition of an ICF: [T]he term “intermediate care facility” means an institution which (1) is licensed under State law to provide, on a regular basis, health-related care and services to individuals who do not require the degree of care and treatment which a hospital or skilled nursing facility is designed to provide, but who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities.... The term “intermediate care facility” also includes any skilled nursing facility or hospital which meets the requirements of the [preceding] sentence.... With respect to services furnished to individuals under age 65, the term “intermediate care facility” shall not include, except as provided in subsection (d) of this section, any public institution or distinct part thereof for mental diseases or mental defects. Id. § 1396d(c) (emphasis added). Conspicuously omitted from section 1396d is any statutory characterization of an “institution for mental diseases.” The Secretary, however, has promulgated a regulation defining an IMD: “Institution for mental diseases” means an institution that is primarily engaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services. Whether an institution is an institution for mental diseases is determined by its overall character as that of a facility established and maintained primarily for the care and treatment of individuals with mental diseases, whether or not it is licensed as such. 42 C.F.R. § 435.1009e (1982) (emphasis added). See also id. § 440.140(a)(2). The consistency of this regulation with the statute is not contested here. What is attacked is the agency’s finding that the three facilities in question are IMDs based on HHS’ interpretation of this regulation. Certain unpublished agency guidelines were employed to determine the overall character of these facilities as IMDs. The operating guidelines were developed in response to perceived problems of deinstitutionalization whereby some patients between 21 and 65 years old in state mental hospitals, for which federal Medicaid payments were not obtainable, were relocated by the states in community-based residential facilities, such as ICFs, for which federal funds were available. HHS circulated intra-office instructional bulletins to assist federal field office personnel in their determinations as to the “overall character” of a facility. The following criteria identifying IMDs were used: 1. A facility is licensed as a mental institution; 2. It advertises as a mental institution; 3. More than 50 percent of the patients have a disability in mental functioning [as defined in the International Classification of Diseases ]; 4. It concentrates on managing patients with behavior or functional disorders and is used largely by mental hospitals for alternative care; 5. It is under the jurisdiction of the mental health authority; 6. It is frequently or predominantly used for individuals who are either discharged from mental hospitals or would otherwise be admitted to them; 7. The facility is in proximity to a State Mental Institution (for example, within a 25-mile radius); 8. The age distribution is uncharacteristic of nursing home patients; and 9. The basis of Medicaid eligibility for patients under 65 is a mental disability. Letter from Tera S. Younger, HCFA Long Term Care Policy Group, to B.F. Simmons (Nov. 3, 1980) (with Discussion Paper: Redefinition on Institution for Mental Diseases attached). See HHS Field Staff Information and Instruction Series (FSIIS) FY-76-156 (Sept. 14, 1976); FY-76-97 (May 3, 1976); FY-76-44 (Nov. 7, 1975). The State of Minnesota asserts that these criteria interpreting the IMD regulation conflicts with the Medicaid provisions of the Social Security Act and with agency regulations. The State contends that if a definition consistent with the statute had been applied, the three facilities would not have been classified as IMDs. It urges that Congress intended the phrase “institution for mental diseases” to apply only to state mental hospitals, or alternatively, that the term applies only to institutions whose primary purpose is to provide specialized care or services for mental illness. Thus, the State contends, inquiry into whether a facility is an IMD must focus on the nature of services that the facility renders, not on the diagnosis or type of illness manifested by the patient. It stresses, for example, that the use of the “51% rule” based on the number of patients in a home with diagnoses of mental diseases is a particularly inap-' propriate and arbitrary factor under the statute. The agency defends its position by pointing to the statutory section 1396d(a) which lists hospital services separately from SNF and ICF services, and then excludes from payment all three types of services in an IMD. Thus, it says, all IMDs are not traditional mental hospitals. Under its view, the term IMD must be able to include SNFs and ICFs or else the word “hospital” would be superfluous because of being incorporated into the term IMD. HHS argues that the Board’s decision upholding the disallowance was rationally based, that the guideline criteria were rationally related to identification of an IMD, and that no one criterion was determinative. It finds the State’s argument against the “51% rule” unfounded here when at least 86% of the patients at each of the three facilities had diagnoses of a mental disease. It maintains that adoption of Minnesota’s position focusing on type of care given would result in rewarding facilities which do not provide the services required by patients’ diagnoses. We hold that the Board’s interpre- . tation of its regulation defining an IMD, and its extensive reliance on diagnoses-based criteria for the purpose of revealing the overall character of an IMD, were inconsistent with the provisions and purposes of the Social Security Act. Accord Connecticut v. Schweiker, 557 F.Supp. 1077, 1091 (D.Conn.1983). We find that the characterization of an IMD must fundamentally center on the type of care or nature of services required, not on the mere presence in a facility of patients who have, or at one time did have, diagnoses of a mental disease. Thus, because insufficient fact finding was performed on the proper basis, we hold that the Board’s decision upholding the disallowance was not supported by substantial evidence on the record as a whole. Our conclusion is rooted in the language of section 1396d defining “medical assistance,” and is supported by legislative history as well as other statutory provisions of the Social Security Act. The skeletal framework of allowable “medical assistance” payments in section 1396d(a) is built around various types and levels of care; the section specifies payments for “inpatient hospital services,” “skilled nursing facility services,” “intermediate care facility services,” “inpatient psychiatric hospital services,” and so on. 42 U.S.C. § 1396d(a)(l), (4)(A), (15), (16) (1976). The statute specifies payments for “intermediate care facility services ... for individuals who are determined, in accordance with section 1396a(31)(A) of this title, to be in need of such care.” 42 U.S.C. § 1396d(a)(15) (1976) (emphasis added). Section 1396d(c) defining an “intermediate care facility” supplies manifest clarification not only of what an ICF is, but more importantly for our purposes, how an IMD is and is not to be exclusively characterized. The ICF definition expressly authorizes care of patients in an ICF with diagnoses of either “mental or physical condition[s]” as long as the illnesses involved “require” a lesser “degree of care and treatment” than a hospital or SNF provides. Cf. Pinneke v. Preisser, 623 F.2d 546, 550 (8th Cir.1980) (statutory limitations for IMDs “do not apply to mental health problems in general”). The legislative history of the IMD exclusion and ICF coverage reinforces the statutory language that Medicaid benefits cannot be denied solely on the ground that an institution primarily serves mental patients and that the paramount criterion for distinguishing an IMD from an ICF must be the degree of care and treatment required by patients. The limitation in the Social Security Act for patients in an “institution for mental diseases” was first enacted in 1950 based on the reason that “ ‘long-term care in such hospitals had traditionally been accepted as a responsibility of the States.’ ” Schweiker v. Wilson, 450 U.S. 221,237 n. 19, 101 S.Ct. 1074, 1084 n. 19, 67 L.Ed.2d 1 Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond2_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 second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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"). Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. Joseph M. PASTORE, Jr., Arbitrator, National Treasury Employees Union, and James Estrella, Respondents. No. 82-1716. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 29, 1983. Decided April 20, 1984. John M. Rogers, Atty., Dept, of Justice, Washington, D.C., for petitioner. J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, William Kanter and Carlene V. McIntyre, Attys., Dept, of Justice, Washington, D.C., were on the brief, for petitioner. Wendy M. Keats and Howard S. Scher, Attys., Dept, of Justice, Washington, D.C., also entered appearances for petitioner. Richard S. Edelman, Washington, D.C., for respondents. Robert M. Tobias, John F. Bufe, Lois G. Williams and Sharyn Danch, Washington, D.C., were on the brief, for respondents. Before BORK and SCALIA, Circuit Judges, and WILLIAMS, Senior District Judge. Opinion for the Court filed by Circuit Judge SCALIA. The Hon. David W. Williams, Senior District Judge for the Central District of California, sitting by designation pursuant to 28 U.S.C. § 294(d) (1982). SCALIA, Circuit Judge: Petitioner, Director of the Office of Personnel Management, seeks review of an order of arbitrator Joseph M. Pastore, Jr., mitigating the penalty of removal imposed by the Customs Service against James Estrella, a Customs Inspector, for the theft of merchandise entrusted to him. Because we find that the arbitrator erred in making his own assessment of an appropriate penalty rather than merely determining whether the penalty imposed by the agency was arbitrary or capricious; and may also have committed the error of considering the disciplinary factors set forth in the collective bargaining agreement controlling, to the exclusion of other factors permitted by federal personnel law; we grant the petition for review and remand the case to the arbitrator. I James Estrella was a Customs Inspector assigned to the Maersk Terminal Wharf, Port Newark, New Jersey. He had been a Customs Inspector for four of his nearly thirty years of government employment. Customs Inspectors are responsible for the administration and enforcement of the laws governing the import and export of merchandise; they operate independently, under only limited general supervision. On August 29, 1980, security officers for Maersk Lines observed Estrella remove from the cargo area a shirt worth approximately $14 at retail and place it in his car. Following an investigation, and Estrella’s response to the charges, the Customs Service issued an order removing Estrella from his position, effective April 9, 1981. The national collective bargaining agreement negotiated between the United States Customs Service and the National Treasury Employees Union (“NTEU”), Estrella’s collective bargaining representative, contains a grievance procedure and a procedure for submitting unresolved grievances to arbitration. It also contains provisions relating to the discipline of employees and the factors management should weigh in determining an appropriate penalty. Estrella filed a grievance relating to his dismissal on April 20, 1981. When this could not be resolved informally, the NTEU invoked arbitration on his behalf. The parties selected Joseph M. Pastore, Jr., to serve as arbitrator. Both the Customs Service and the NTEU introduced evidence concerning whether Estrella had taken the shirt, and argument concerning whether the penalty of removal was appropriate. Both parties agreed that the appropriateness of the penalty should be judged by the following question which was derived from the contract’s discipline terms: Was the removal of the grievant in violation of the contractual requirements for removal only for such cases as will promote the efficiency of the Service; discipline to be progressive in nature; and like penalties for like offenses and, if so, what shall the remedy be? In re Arbitration between the National Treasury Employees Union and the United States Customs Service, Initial Opinion and Award at 5 (Jan. 26, 1982) (Pas-tore, Arb.) (emphasis added). The arbitrator found on January 26, 1982, that Estrella had placed the shirt in his car for his own use, and that although Estrella’s actions “did tend to impair the efficiency of the Service,” his removal was not consistent with the contractual policies of progressive discipline and like penalties for like offenses. Id. at 25. The arbitrator also found the action inconsistent with his own interpretation of the agency’s Table of Offenses and Discipline. Id. Accordingly, he mitigated Estrella’s discipline to a thirty-one day suspension. On March 5, 1982, the Office of Personnel Management (“OPM”) intervened to request the arbitrator to reconsider. OPM argued, as it has in this court, that the arbitrator erred in failing to apply the “arbitrary, capricious, or clearly erroneous” standard in reviewing the agency’s decision. The arbitrator denied OPM’s reconsideration request on May 20, 1982. The opinion on reconsideration again reviewed the evidence supporting the penalty and reaffirmed that the removal sanction was not justified under the contractual tests. In re Arbitration Between the National Treasury Employees Union and the United States Customs Service, Arbitrator’s Response to OPM Request for Reconsideration at 6 (May 20, 1982) (Pastore, Arb.) (hereinafter cited as “Opinion on Reconsideration”). II Section 7121 of the civil service law, 5 U.S.C. § 7121(f) (1982), authorizes the Director of the Office of Personnel Management to seek judicial review of the decisions of arbitrators in the same manner as he is empowered by § 7703 to seek review of decisions of the Merit Systems Protection Board (“MSPB”), id. at § 7703. The Director may petition for review of those orders having a “substantial impact” on the operation of the civil service system. The granting of such a petition is at the discretion of the court. Id. at § 7703(d). Our consideration of this case persuades us that the resolution of the issues it presents can have a substantial impact on civil service law, and the case is therefore appropriate for review. We are faced with the question, however, of whether the OPM petition for review is timely. Section 7703(b) states that a petition for review must be filed within thirty days after the date the petitioner receives notice of the final decision appealed from. As noted above, here OPM did not seek review of the decision in the original arbitration (to which OPM had not been a party), but first intervened and requested the arbitrator to reconsider. This course was followed in reliance upon this court’s language in Devine v. Goodstein, 669 F.2d 736 (D.C.Cir.1981), which suggested that OPM must intervene and seek reconsideration before it can petition for review of an arbitrator’s decision, just as it must do before petitioning for review of an MSPB decision in a case to which it is not a party. See 5 U.S.C. § 7703(d) (1982). The opinion stated that “[bjecause the Director did not intervene in the matter when it was before the arbitrator, he petitioned the arbitrator for reconsideration as required by § 7703(d).” 669 F.2d at 736 (dictum) (emphasis added). In Devine v. White, 697 F.2d 421 (D.C.Cir.1983), decided after this petition for review had been filed, we addressed the issue of the timing of appeals from the decisions of arbitrators, holding that OPM was neither required nor permitted to ask the arbitrator to reconsider his decision, and that such action would not toll the thirty-day limit. Id. at 433. Applying that holding to this case would make OPM’s June 25, 1982 petition for review of the arbitrator’s January 26, 1982 decision out of time. In Devine v. White, however, we excused OPM’s noncompliance with the time requirements, noting that OPM had acted in reliance upon the “misleading signals” given in Devine v. Goodstein, and that its petition was timely when analyzed against that mistaken standard. 697 F.2d at 433. Since the same circumstances exist here, the argument that this petition is out of time must be rejected. III The Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. lili (codified as amended in scattered sections of 5 U.S.C. (1982)), established alternative procedures for review of agency actions removing employees. An employee has the option of pursuing the Act’s appellate procedures by taking his appeal to the MSPB, or he may pursue the negotiated grievance procedures contained in the employee’s collective bargaining agreement. 5 U.S.C. § 7121(e)(1) (1982). Estrella initiated the latter procedure by filing a grievance. Grievance procedures, typically culminating in arbitration, and MSPB review differ in many respects. Arbitration is recognized as “faster, cheaper, less formal, more responsive to industrial needs, and more conducive to the preservation of ongoing employment relations.” Devine v. White, supra, 697 F.2d at 435. While undoubtedly hoping to encourage employee selection of the grievance-arbitration process, Congress did not wish that choice to be made on the basis of a predictable difference in substantive outcome. To the contrary, it envisioned a system that would, as between arbitration and MSPB procedures, “promote consistency ... and ... avoid forum shopping.” H.R.Rep. No. 1717, 95th Cong., 2d Sess. 157, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2860, 2891 (discussion of burden of proof provisions). This court has previously noted that substantial disuniformity between the review powers of arbitrators and of the MSPB would frustrate congressional intent. See Local 2578, American Federation of Government Employees v. General Services Administration, 711 F.2d 261, 265 (D.C.Cir.1983). One of the areas in which uniformity is required is the standard of review applied by the decisionmaker. The statute itself, 5 U.S.C. § 7121(e)(2), is explicit on the point, stating that in those matters appealable to the MSPB “an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable” — the section setting forth the MSPB’s standards of review. In Local 2578, supra, in holding that an arbitrator erred by refusing to review an agency’s choice of penalties, we said: “The inequity of an arbitrator having less authority than the MSPB to deal with the same adverse action is self-evident; an aggrieved employee would be likely to choose the forum providing the greatest independent review of an adverse decision.” 711 F.2d at 265. Local 2578 involved an arbitrator who had declined to review the appropriateness of a penalty entirely. But its reasoning applies as well to the standard of review, and supports the conclusion not only that the arbitrator’s authority can be no less than the MSPB’s but also that it can be no greater. In fact, this corollary has even more substantial support, since it is demanded not only by the congressional intent to prevent outcome-related forum shopping, but also by that provision of the Civil Service Reform Act which prohibits any collective bargaining agreement to “affect the authority of any management official of any agency ... to suspend, remove, reduce in grade or pay, or take other disciplinary action against ... employees.” 5 U.S.C. § 7106(a)(2)(A). That provision would be violated if an agreement could, by providing for arbitration, alter the test that must be met to support such agency action, making it more rigorous than that which the law (and the MSPB) would provide. It is clear that in the present case the arbitrator applied a different (and more intensive) standard of review than would have been applied by the MSPB. In responding to OPM’s motion for reconsideration he said: The question presented to the Arbitrator was not, as OPM contends, whether the adverse action of discharge was within the spectrum of available penalties which might be imposed by the Service nor was the question presented to the Arbitrator, directly, one of testing to determine whether the adverse action imposed upon the grievant was “arbitrary and capricious.” Rather, the parties freely solicited the opinion and judgment of the Arbitrator only with respect to the contractual test of whether the removal of James Estrella met each of the three’ conditions of (1) efficiency impairment; (2) like penalty for like offenses; and, (3) progressive discipline as cited in Article 30 of the Agreement. Opinion on Reconsideration at 6 (emphasis in original). He noted that he had been asked by the parties to “determine whether certain provisions of Article 30 of the Agreement were violated by the Service and ‘if so, what shall the remedy be?’” and that his obligation was “morally, to attempt to decide in a manner which is just to the individuals involved while at the same time maintaining productive union-management peace and harmony.” Id. at 15. This differs from MSPB review in that it constitutes a direct application of the arbitrator’s own judgment regarding the appropriate penalty, rather than according what the Board has described as “appropriate deference to the primary discretion which has been entrusted to agency management, not to the Board,” Douglas v. Veterans Administration, 5 MSPB 313, 328 (1981). The Board’s role in this process is not to insist that the balance be struck precisely where the Board would choose to strike it if the Board were in the agency’s shoes in the first instance; such an approach would fail to accord proper deference to the agency’s primary discretion in managing its workforce____ Only if the Board finds that the agency failed to weigh the relevant factors, or that the agency’s judgment clearly exceeded the limits of reasonableness, is it appropriate for the Board then to specify how the agency’s decision should be corrected to bring the penalty within the parameters of reasonableness. Id. at 332-33. We have approved this standard of review in Parsons v. United States Department of the Air Force, 707 F.2d 1406, 1409 (D.C.Cir.1983). The arbitrator’s review may also have differed from that which would correctly be applied by the MSPB in that he considered the relevant factors to be those set forth in the NTEU-Customs Service collective bargaining agreement. But if a collective bargaining agreement were able to fix the factors governing discipline, it would “affect the authority of [a] management official of [an] agency ... to ... take disciplinary action,” 5 U.S.C. § 7106(a)(2)(A) — which, as we have said above, the law prohibits. Thus, if the disciplinary factors recited in the NTEU-Customs Service agreement were different from the factors permitted and required by federal personnel law, we would be confronted with the issue whether a provision not properly includable in a collective bargaining agreement must nonetheless be given effect unless challenged directly pursuant to the procedures set forth in the Federal Service Labor-Management Relations title of the Civil Service Reform Act, 5 U.S.C. §§ 7116(a)(5), 7117(c) (1982). We find it unnecessary to reach that issue, however, since the present agreement can be interpreted in a fashion that renders it unquestionably lawful. Although it does not recite all the factors relevant under federal personnel law, those factors it does recite are consistent with them, and the remaining factors can reasonably be considered subsumed within the contract’s residual phrase “any other factors or circumstances bearing upon the incidents or acts involved.” Compare NTEU-Customs Collective Bargaining Agreement, Art. 30 §§ 1-3, reproduced in Initial Opinion and Award at 5-6, with Douglas v. Veterans Administration, supra, 5 MSPB at 329, 332. But although the language of the agreement may be given this breadth, there is nothing to indicate that the arbitrator interpreted it that way. To the extent the arbitrator considered himself, by reason of being bound to the specific factors enumerated in the agreement, unable to take account of all the factors permissible under federal personnel law, he would have been misinterpreting the agreement and thus misapplying the law. IV Since the arbitrator applied an erroneous standard of review, we must set aside his determination. OPM has urged us to resolve this matter finally here, on the ground that the agency could not, as a matter of law, be reversed in the circunlstances of this case. We decline to do so, if only because the circumstances may not have been fully developed in the record if the parties (both of whom were applying the contractual test) believed that test to exclude any of the factors relevant under federal personnel law. We think it preferable to remand this proceeding to the arbitrator for reconsideration of the issue of level of discipline under the proper standard and taking into account all appropriate factors, with the ability to receive any further evidence that such reconsideration may render desirable. The factors relevant under federal personnel law are set forth at some length in Douglas v. Veterans Administration, supra, 5 MSPB at 329-32. (We do not suggest that the arbitrator must explicitly allude to each of them.) The standard which must be met, in the application of those factors, has been variously described by the Board as whether the disciplinary action is “clearly excessive”; “arbitrary, capricious, or unreasonable”; “too harsh and unreasonable under the circumstances”; “unduly harsh, arbitrary, and unreasonable”; “an abuse of agency discretion, or ... [reflecting] an inherent disproportion between the offense and the personnel action, or disparity in treatment”; “unreasonable”; “clearly excessive in proportion to the sustained charges”; “violat[ive of] the principle of like penalties for like offenses, or ... otherwise unreasonable under all the relevant circumstances”; and “within tolerable limits of reasonableness.” Id. at 326-29. The Board is under the impression that this standard differs from the “arbitrary or capricious" standard ordinarily applied by courts to review of administrative action, see 5 U.S.C. § 706(2)(A) (1982). Id. at 327-28. Though that is not entirely clear, see Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., — U.S. -, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983) (under the arbitrary or capricious test courts determine if there has been “a clear error of judgment”), we need not resolve that detail here. Nor need we resolve the extent, if any, by which the standard diverges from the “just cause” standard normally applied by arbitrators in private-sector grievances. See McKelvey, Discipline and Discharge, in Arbitration in Practice 89-91 (A. Zack ed. 1984). An adequate description of the standard — perhaps as precise as the nature of the matter allows — is set forth in Douglas, supra, and that should suffice for the arbitrator’s guidance. We do not suggest that the arbitrator must conduct an examination of the MSPB case law, in the manner of a common law judge, to assure himself that the outcome of his determination is similar to the MSPB case closest on its facts. But it must be clear, at least, that he is making a conscientious application of the judicially approved MSPB standard. Only in this manner can there be assured that rough uniformity which is necessary in the review of federal agency disciplinary action. We further note that if the arbitrator finds the agency action unsupportable on this basis, his subsequent task is not to select that discipline which in his independent view is appropriate, but merely to reduce the agency’s to a level that is “within the parameters of reasonableness,” Douglas v. Veterans Administration, supra, 5 MSPB at 333 — that is, to reduce it only so much as is necessary to bring it to a level that can be sustained. Petition granted. . The parties to the arbitration were the NTEU and the Customs Service. The Office of Personnel Management did not intervene until after the arbitrator issued his Initial Opinion and Award. . The Court of Appeals for the Federal Circuit now has exclusive jurisdiction over these appeals. 5 U.S.C. § 7703(b)(1), (d) (1982). At the time this appeal was filed, however, petitions for review could be made to any court of appeals in which general venue requirements were met. 5 U.S.C. § 7703(b)(1), (d) (Supp. V 1981). . OPM intervened and moved for reconsideration on March 5, 1982, more than thirty days after the arbitrator’s decision of January 26, 1982. The statute, however, measures the time period for appeal from the time OPM "receive[s] notice" of the decision, 5 U.S.C. § 7703(b)(1) (1982), which in this case was February 26, 1982, see Affidavit of Naomi J. Miske, Supplemental Brief for Petitioners at 3a, making the March 5, 1982 motion for reconsideration timely under the Devine v. Goodstein analysis. Similarly, OPM’s June 25, 1982 petition for review of the arbitrator’s May 20, 1982 denial of the reconsideration motion is timely in this sense because the OPM did not receive notice of the arbitrator’s denial until May 28, 1982. See OPM Petition for Review at 3. . Subsequent to the argument of this appeal, the Court of Appeals for the Federal Circuit has stated that it ”find[s] no support" for the position that "an arbitrator must apply the same standard to mitigation of penalties as that used by the MSPB.” Devine v. Sutermeister, 724 F.2d 1558, 1565 (Fed.Cir.1983). The statement is dictum, since the court specifically said that it "need not decide whether an arbitrator is always or never bound by MSPB precedents," and found “no conflict between the arbitrator's opinion” and the relevant MSPB authority. Id. at 1565. It is not entirely clear whether even the dictum of the opinion means to assert that the arbitrator can ignore so fundamental an element of "MSPB precedent” as the "arbitrary or capricious” standard of review. See id. We recognize that the Court of Appeals for the Federal Circuit now has exclusive jurisdiction over adverse action appeals, see note 2, supra. Nonetheless, since its statement bearing upon this point is not entirely clear and is dictum in any event; since the prior decisions of this court are entirely clear; and since those prior decisions seem to us correct, we see no reason to depart from the law of this circuit. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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:
sc_petitioner	152	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. PETERSON et al. v. CITY OF GREENVILLE. No. 71. Argued November 6-7, 1962. Decided May 20, 1963. . Matthew J. Perry argued the cause for petitioners. With him on the brief were Jack Greenberg, Constance Baker Motley, James M. Nabrit III, Lincoln C. Jenkins, Jr., Willie T. Smith, Leroy Clark, William T. Colemdn, Jr., William R. Ming, Jr. and Louis H. Poliak. Theodore A. Snyder, Jr. argued the cause for respondent. With him on the brief was Thomas A. Wofford. 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, Ralph S. Spritzer, Louis F. Claiborne, Harold H. Greene, Howard A. Glickstein and Richard K. Berg. Mr. Chief Justice Warren delivered the opinion of the Court. The petitioners were convicted in the Recorder’s Court of the City of Greenville, South Carolina, for violating the trespass statute of that State. Each was sentenced to pay a fine of $100 or in lieu thereof to serve 30 days in jail. An appeal to the Greenville County Court was dismissed, and the Supreme Court of South Carolina affirmed. 239 S. C. 298, 122 S. E. 2d 826. We granted certiorari to consider the substantial federal questions presented by the record. 370 U. S. 935. The 10 petitioners are Negro boys and girls who, on August 9, 1960, entered the S. H. Kress store in Green-, ville and seated themselves at the lunch counter for the purpose, as they testified, of being served. When the Kress manager. observed the petitioners sitting at the counter, he “had one of [his] . . . employees call the Police Department and turn the lights off and state the lunch counter was closed.” A captain of police and two other officers responded by proceeding to the store in a patrol car where they were met by other policemen and two state agents who had preceded them there. In the presence of the police and the state agents, the manager “announced that the lunch counter was being closed and would everyone leave” the area. The petitioners, who had been sitting at the counter for five minutes, remained seated and were promptly, arrested. The boys were searched, and both boys and girls were taken to police headquarters. The manager of the store did not request the police to arrest petitioners; he asked them to leave because integrated service was “contrary to local customs” of segregation. at lunch counters and in violation of the following Greenville City ordinance requiring separation of the races in restaurants: “It shall be unlawful for any person owning, managing or controlling any hotel, restaurant, cafe, eating house, boarding-house or similar establishment to furnish meals to white persons and colored persons in the same room, or at the same table, or at the same counter; provided, however, that meals may be served to white persons and colored persons in the same room where separate facilities are furnished. Separate facilities shall be interpreted to mean: “(a) Separate eating utensils and separate dishes for the serving of food, all of which shall be distinctly marked by some appropriate color scheme or otherwise; “(b) Separate tables, counters or booths; “(c) Á distance of at least thirty-five feet shall be maintained between the area where white and colored persons are served; “(d) The area referred to iii subsection (c) above shall not be vacant, but shall be occupied by the usual display counters and merchandise found.in a business concern of a similar nature ; “(e) A separate facility shall be maintained and used for the cleaning of eating utensils and dishes furnished the two races.” Code of Greenville, 1953, as amended in 1958, § 31-8. The manager and the police conceded that the petitioners were clean, well dressed, unoffensive in conduct, and that they sat quietly at the counter which was designed' to accommodate 59 persons. The manager described his establishment as a national chain store of 15 or 20 departments, selling over 10,000 items. He stated that the general public was invited to do business at the store and that the patronage of Negroes was solicited in all departments of the store other than the lunch counter. Petitioners maintain that South Carolina has denied them rights of free speech, both because their activity was protected by the First and Fourteenth Amendments and because the trespass statute did not require a showing that the Kress manager gave them notice of his authority when he asked them to leave. Petitioners also assert that they have been deprived of the equal protection of the laws- secured to them against state action by the Fourteenth Amendment. We need decide only the last of the questions thus raised. The evidence in this case establishes beyond doubt that the Kress management’s decision to exclude petitioners from the lunch counter was made because they were Negroes. It cannot be disputed that under our decisions “private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to have become involved in it.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 722; Turner v. City of Memphis, 369 U. S. 350. It cannot be denied that here the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated, on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby "to a significant extent” has "become involved” in it, and, in fact, has removed that decision from the sphere of private choice. It has thus effectively determined that a person owning, managing or controlling ail eating place is left with no choice of his own but must segregate his white, and Negro patrons. The Kress management, in deciding to exclude Negroes, did precisely what the city law required. Consequently these convictions cannot stand,.even assuming, as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance. The State will not be heard to make this contention in support of the convictions; For'the convictions had the effect, which the State cannot deny, of enforcing the ordinance passed by the City of Greenville, the agency of the State.' When a state agency passes a law compelling persons to discriminate against other persons because of race, and the State’s criminal processes are employed in a way which enforcés the discrimination mandated by that law, such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the mental urges of the discriminators. Reversed. S. C. Code, 1952 (Cum. Supp. 1960), § 16-388: “Entering premises after warned not to do so or failing to leave after requested. “Any person:’ “(1) Who without legal cause or good excuse enters into the dwelling house, place of business or on the premises of another person, after having been warned, within six months, preceding, not to do so or “ (2) Who, having entered into the dwelling house, place of business or on the premises of another person without having been warned within six months not to do so, and fails and refuses, without good cause or excuse, to leave immediately upon being ordered or requested to do so by the person in possession, - or his agent or representative, “Shall, on conviction, be fined not more than one hundred dollars, or be imprisoned for not more than thirty days.” Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Joseph K. McCUTCHEN, Appellant, v. The SINGER COMPANY and Kingston Mills, Inc., Appellees. The SINGER COMPANY and Kingston Mills, Inc., Appellants, v. Joseph K. McCUTCHEN, Appellee. No. 22941. United States Court of Appeals Fifth Circuit. Nov. 20, 1967. Rehearing Denied Feb. 14, 1968. Ernest P. Rogers, Thomas C. Shelton, Atlanta, Ga., for appellant. Asa W. Candler, Atlanta, Ga., Gran-ville M. Brumbaugh, New York City, for appellee. Before TUTTLE and AINSWORTH, Circuit Judges, and FULTON, District Judge. AINSWORTH, Circuit Judge: This is a patent infringement suit by Joseph K. McCutchen, plaintiff, against The Singer Company and Kingston Mills, Inc., defendants, involving plaintiff’s United States Patent No. 2,879,728. From the judgment of the district court (sitting without a jury), plaintiff has appealed and defendants have cross appealed. McCutchen’s patent application for a tufting machine and method was filed January 26, 1956, and granted on March 31, 1959, containing fourteen separate claims. Plaintiff’s invention describes a machine which “can produce severed or unsevered loops with any or all of its multiple needles, the arrangement being such that certain needles which have previously sewed severed loops into the fabric base may be caused during the continued operation of the machine to produce unsevered loops, and vice versa”. Plaintiff contends that at the time of his invention “there was no machine which would effectively produce both cut pile and uncut pile on a single needle-looper-eutter combination, on one pass of the base fabric through the machine.” The tufting machines have broad application in the tufted textile industry, especially in the production of tufted carpeting, multiple needle machines now being available of 1,200 to 1,500 needles in a single row able to produce 12 to 15 feet widths with a production of 300 to 350 linear yards per 8-hour shift. Eighty per cent of the total carpet and rug output is now on tufted machines. Plaintiff further contends that the “broadest aspect” of his invention is “in his discovery that an uncut loop could be effectively removed from the free end of a looper facing in the direction opposite to that of the fabric feed through the machine, thus enabling the traditional machine for producing cut pile to be adapted also for production of uncut pile, the same looper performing both functions without change of direction and without removal, adjustment or discontinuance of the cutting device.” Thus plaintiff states that he has invented a machine which enables “a base fabric, in one pass through a single machine to have all cut pile on its underside or to have all uncut pile or to have interspersed rows of both or to have intermittent cut and uncut pile in a single row of tufting, and by the attachment of any traditional patterning device, * * * to produce areas of cut and uncut loops in the base fabric, on one pass through the machine, to form a predetermined pattern or design by the contrast of such areas.” In his suit plaintiff avers that two machines of defendant Singer, known as Form 1 and Form 2, infringe his patent. Defendants deny all claims made by plaintiff, including that of infringement, and assert the invalidity of McCutchen’s patent. They concede, however, that if any of the fourteen claims in McCutchen’s patent is valid, the Form 1 machine infringes. Plaintiff’s contention is that his invention is an improvement over the prior art and that heretofore separate machines were necessary to produce cut pile and uncut pile. Tufting is done by the use of converted sewing machines where the bobbin has been removed and a new shaft under the bedplate of the machine added to which is attached a hook or looper in place of the bobbin. An oscillating needle carries the yam down through the fabric where it is held by the looper as the needle makes an upward stroke. Cut pile is the result of the clipping of the loops so produced and loop pile results from loops which are uncut. Plaintiff’s invention by a separately mounted finger or pusher engages and removes loops upon the looper when uncut pile is desired and can be inactivated so as to permit the loops to reach the cutter and produce cut pile. The issues in this case have been severely limited by the parties themselves by stipulation. They are whether defendant Singer’s Form 1 machine infringes plaintiff’s patent, which it is conceded will be true if any one of the fourteen claims of the McCutchen patent is valid; and whether defendant Singer’s Form 2 machine infringes Claims 1, 2 and 3 of plaintiff’s patent. The district judge held that defendant Singer’s Form 1 machine infringed plaintiff’s patent but also found that Claims 1 and 10 of plaintiff’s patent were invalid. However, the district judge held that there was no infringement of plaintiff’s patent by defendant Singer’s Form 2 machine. INVALIDITY OF McCUTCHEN’S PATENT Defendants contend that all of the fourteen claims in plaintiff’s patent are invalid. They state that the McCutchen patent is an obvious and anticipated combination of old elements and refer to the prior art patents of Gladish, No. 1,907,-292, dated May 2, 1933; Behrens, No. 2,513,261, dated June 27,1950; and Hoe-selbarth, No. 2,882,845, dated April 21, 1959, but application was filed on July 5, 1955, prior to McCutchen; and to the invention of George Dedmon, also said to be prior art, in support of their contention. Defendants maintain that all that Mc-Cutchen did was to take a conventional prior art cut pile tufting machine which he purchased from defendant Singer’s predecessor and mount an attachment consisting of finger elements adjacent to the loopers to engage the loops on the loopers and push them off before they can be severed by the cutters. Defendants assert that machines for making both loop and cut pile fabric with the same needle during a single pass of the fabric are disclosed in the prior art patents of Gladish and Hoeselbarth; that the prior art Behrens patent discloses a finger element used to push loops off the looper in a tufting machine. Finally, defendants contend that a combination of all these so-called old elements is found in Dedmon’s machine which they say is earlier than plaintiff’s invention. The trial judge did not agree with the several defense contentions. He concluded that Gladish (unlike McCutchen) used certain grouper arms in lieu of a finger, with the looper facing at an angle to the direction of movement of the fabric, and that the Gladish, Hoeselbarth and Behrens patents had never attained commercial success. The district court held that plaintiff’s device showed “inventive genius” in that “at all times the looper in question faces in a direction opposite to that from which the fabric is moving, and * * * provides for a ‘finger’ or ‘pusher’ which, when uncut loops are desired, will push the loops from the looper, preventing a cutting device from severing the loops.” We are in agreement with the trial court’s findings and conclusions in connection with the prior art. Gladish did not use the finger or pusher device invented by McCutchen and which we believe is an integral part of McCutchen’s invention. Though Behrens’ machine has a looper facing in the opposite direction of the fabric feed for cut pile, and the machine will produce both cut and uncut pile, in order to switch from one to the other the machine must be stopped and the looper in operation removed and replaced by the other. Thus Behrens neither anticipates nor renders obvious Mc-Cutchen’s invention. McCutchen’s patent is earlier than Hoeselbarth’s, the Mc-Cutchen date being March 31, 1959 and Hoeselbarth’s date being April 21, 1959. The two applications were, however, pending before the Patent Office at the same time. We will discuss Dedmon’s device fully hereafter in this opinion. No interference was suggested by the Patent Office as to any of the prior art patents and, accordingly, Mc-Cutchen’s patent has presumptive validity under the statute. See Samuelson v. Bethlehem Steel Company, 5 Cir., 1963, 323 F.2d 944, 947, cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1954); Southern States Equip. Corp. v. USCO Power Equip. Corp., 5 Cir., 1953, 209 F. 2d 111, 118. The defendants contend that eight of the designated claims of plaintiff, namely, Claims 1, 4, 6, 7, 8,10, 11 and 12, are invalid for failure to include or distinctly recite elements essential to the alleged invention. Thus defendants contend that the McCutchen Patent Claim 1 does not include a cutter to cooperate with the looper for severing loops upon the looper; accordingly, that the machine is incapable of making cut pile and can only make loop pile, which claim is, therefore, in opposition to McCutchen’s patent specifications that the object of the invention is a machine capable of producing both loop and cut pile. The trial judge agreed with defendants and held Claim 1 invalid for failure to include a cutting device to operate upon the loops while on the looper, which device he found was essential to the operation. We concur with the trial judge’s conclusion, for if the purpose of the invention was a machine capable of producing both cut and uncut pile in one pass through the machine, failure to include in Claim 1 a device for severing the loops while on the looper was a fundamental omission of an essential claim which cannot be supplied by implication and, therefore, rendered Claim 1 invalid. See Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005 (1935), and cases cited therein, as well as 35 U.S.C. § 101 defining a patentable invention and 35 U.S.C. § 112 requiring that the claims particularly point out and distinctly claim the subject matter of the invention. Defendants assert that Claims 4, 6, 7, 8, 10, 11 and 12 of the McCutchen patent are invalid because they omit any reference to the direction in which the looper is to face in connection with the fabric feed. Plaintiff agrees with this contention in his reply brief and concedes the invalidity of these claims for that reason. Defendants rely most strongly on the Dedmon machine for invalidation of the McCutchen patent, averring that Ded-mon antedates McCutchen’s invention and is a prior invention which had not been abandoned, suppressed or coneeal-ed; that Dedmon’s machine embodies all elements of the McCutchen machine and, therefore, is a true anticipation under the patent statute. See 35 U.S.C. §§ 102 (a) and 102(g). However, the district court found that though the record “is somewhat confused as to the relative dates on which the McCutchen and the Dedmon devices were actually reduced to practice,” McCutchen’s device predated Dedmon’s, and the court further said that he was basing his finding “primarily upon the failure of defense counsel to be more specific as to certain dates, although evidence could have been obtained removing some of this uncertainty.” The district court then held that Dedmon had concealed his invention and that the evidence showed a clear intent upon the part of Dedmon and his employer to keep it secret. A special room was specifically constructed from which others were excluded where work on the Dedmon device was going on. The room could not be entered without passing through an adjoining room occupied by other persons in the employ of the company and disclosure of the Dedmon device was limited and closely guarded. Thus, by virtue of these and other circumstances which he described, the court ruled that Dedmon concealed his device within the meaning of 35 U.S.C. § 102 (g), and it “cannot be considered as an anticipation to the McCutchen device under the facts of this case.” In reviewing these findings, they should not be disturbed unless clearly erroneous, that is, unless we have a definite and firm conviction that a mistake has been made. See Rule 52(a), Fed.R.Civ. P.; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774. Whether Dedmon’s machine was known by others in this country before McCutchen’s, or whether McCutchen predated Dedmon, and whether Dedmon concealed his invention, were issues of fact submitted to the district court with numerous witnesses, exhibits, documents and depositions. The evidence was in sharp conflict. Defendants had the burden of proving beyond any reasonable doubt that Dedmon was the first inventor of the device in question and that the patent was invalid. See Foster Cathead Co. v. Hasha, 5 Cir., 1967, 382 F.2d 761; Cameron Iron Works, Inc. v. Stekoll, 5 Cir., 1957, 242 F.2d 17. In view of the numerous witnesses who testified for each side, including the experts, and with the credibility choices which the district judge had to resolve on conflicting evidence, we are unable to say that the trial court’s findings are clearly erroneous or that we are firmly convinced that a mistake has been made. We hold, therefore, with the district judge that plaintiff’s patent and the claims he has asserted therein are valid except for those heretofore conceded by plaintiff to be invalid and except Claim 1, which was found by the trial judge to be invalid and which finding we also affirm. Thus our holding of validity of plaintiff’s patent necessarily requires a holding that defendant Singer’s Form 1 machine infringes the McCutchen patent. INFRINGEMENT OF McCUTCHEN’S PATENT The final question for decision is whether defendant Singer’s Form 2 machine infringes McCutchen’s patent and plaintiff has restricted his charge of infringement to Claims 1, 2 and 3 of his patent. Claims 1, 2 and 3 contain refer-' enees to means to engage and remove certain other loops from the looper, and means (separate from the looper and cutter) for engaging and removing certain other loops from the looper — so the fabric base may contain areas of severed loops and areas of unsevered loops. Plaintiff urges that we give these claims the broadest possible construction relative to the means to engage certain other loops upon the looper and to remove them from the looper; that the language of plaintiff’s patent shows that the drawings and specifications were intended only as a preferred embodiment rather than the only possible embodiment of the invention. They cite Up-Right, Inc. v. Safway Products, Inc., 5 Cir., 1963, 315 F.2d 23, 27, where this court said that “we adhere to the established rule that the patent was not limited to the preferred embodiments shown in the claims or drawings.” The trial court in finding no infringement of the McCutchen patent by the Singer Form 2 machine said that “the novel and critical feature” of the Mc-Cutchen machine “consists of a device known as a ‘finger’ or ‘pusher’ which removes the loops in the yarn from the looper from time to time as the fabric moves along, so as to alternate between cut and uncut loops on the finished product.” The district court then referred to the Singer Form 2 machine which it found also removes the loops from the looper in order to. have cut and uncut loops according to desired design, “but in doing so does not use a ‘finger’ or ‘pusher’, or any device which can be considered as an equivalent thereof.” And the court said it was clear “that the means adopted in plaintiff’s patent, of engaging and removing the loops upon the looper, are not equivalent to the means of doing the same thing contained in defendants’ Form 2 machine (which Consists of a device regulating the speed with which the yarn is fed into the final product).” Claims 1, 2 and 3 refer to means “to engage” other loops upon the looper and to remove them from the looper; also to means separate from the looper and cutter “for engaging” certain other loops upon the looper for removing them in order that there may be areas of severed loops and areas of unsevered loops on the fabric base. Defendants urge that the Singer Form 2 machine employs completely different means separately patented by defendant Singer for removing loops from the looper. We agree with defendants that there is a substantial difference between the method which the McCutchen and Singer Form 2 machines use in removing loops from the looper so that they will not be severed by the cutter. McCutchen uses a finger or pusher which engages the loops and pushes them off. The Singer Form 2 machine has no such finger or pusher or other device to engage the loops on the looper, but uses an entirely different device on which Singer has a patent, with a mechanism consisting of two feed rolls, a yarn shifting finger, a pattern drum and a solenoid. By virtue of alternate knurled and smooth bands on the feed rolls arranged so that one roll travels at a higher speed than the other, the machine can be set so that it will produce cut or loop pile as desired. When the yarn is in contact with the fast feed roll, more yarn is fed to the tufting needle, thus forming loops which are cut in the normal cut pile operation since the loop stays on the looper and is cut as it enters the cutting areas at the rear of the looper. However, if the yarn is in contact with the slower roll, less yarn is fed to the tufting needle which must draw yarn from the previously formed loop, and the tension thus created causes the loop to slip off the point of the looper, and also causes the loop to be shorter, and hence it is not severed by the cutter. The cut pile is thus quite a bit longer than the looped pile. The doctrine of equivalents which plaintiff urges in support of his claim of infringement is inapplicable because the two machines perform in entirely different ways and with entirely different mechanisms. The Patent Office must have agreed when it granted Singer a patent on its machine after the McCutchen patent. A patentee who has made only a narrow improvement is restricted to his own improvement and cannot prevent others from making improvements on the prior art if they do not use substantially the same method and novelty. Edwards v. Johnston Formation Testing Corporation, 5 Cir., 1932, 56 F.2d 49; Industrial Instrument Corporation v. Foxboro Company, 5 Cir., 1962, 307 F.2d 783. Defendant Singer’s patent for its Form 2 machine does not have a means to engage and remove loops from the looper such as the finger or pusher in the Mc-Cutchen patent. The Singer Form 2 machine removes the loops in a completely different manner as a result of the use of a mechanism which provides tension on the yarn itself, causing it to be removed from the looper when uncut pile is desired. Plaintiff erroneously wishes us to hold, in effect, that his patent includes every means for removing loops from the looper in a machine in which the looper is placed opposite the direction of the fabric feed. However, for the accused Singer Form 2 machine to infringe it must perform the same function in substantially the same way to obtain substantially the same result. Up-Right, Inc. v. Safway Products, Inc., 5 Cir., 1953, 315 F.2d 23, 27. As we have already indicated, the methods of the two machines are substantially different. The Singer Form 2 machine has apparently solved what was a fundamental defect in the McCutchen machine, that is, the problem of re-engagement of loops which had been pushed from the looper by the finger or pusher. Since the Singer Form 2 machine uses no such device but depends on the tension of the yarn strand itself, and since in the unsevered loop operation the loops are somewhat shorter, there is no problem of re-engagement of the loops on the looper. We are firmly convinced, therefore, that there is no infringement by the Singer Form 2 machine. The claims asserted by plaintiff are much too broad and not justified by the evidence. As the Supreme Court said in Boyden Power-Brake Co. v. Westinghouse, 170 U.S. 537, 18 S.Ct. 707, 723, 42 L.Ed. 1136 (1898), “the alleged infringer must have done something more than reach the same result. He must have reached it by substantially the same or similar means, or the rule that the function of a machine cannot be patented is of no practical value.” The similarity of result accomplished by the McCutchen and Singer Form 2 machines is not sufficient to establish infringement for there must be a real identity of means, operation, and result for McCutchen to prevail. See Foster Cathead Co. v. Hasha, 5 Cir., 1967, 382 F.2d 761. Affirmed. . McCutchen is a citizen of Dalton, Georgia; The Singer Company is a New Jersey corporation doing business in Georgia; and Kingston Mills, Inc. is a Georgia corporation and a lessee of one of Singer’s machines said to infringe McCutchen’s patent in this case. . The quoted portion is from the language of the patent, column 1, lines 38-43. . The trial judge also said in his written opinion, “Prior to plaintiff’s invention, in order to form on the fabric designs by use of alternating cut and uncut loops, it was necessary to use two different machines, in one of them all of the loops being cut and in the other, all of the loops being uncut, thereby necessitating that the fabric be run through each machine separately. A great saving in time and expense was therefore afforded by the McCutchen patent which required only one trip by the fabric over the throat plate. “The McCutchen device employs a mechanism whereby the ‘finger’ or ‘pusher’ is activated or rendered inactive in order to give the design intended, but this device is not new.” . The trial judge said in his opinion, “Plaintiff’s Claim No. 1 (perhaps through inadvertence) does not include a cutting device to operate upon the loops while on the looper, though that device is essential to the operation and therefore, under cases cited by defense counsel, Claim No. 1 is invalid.” . 35 U.S.C. § 101 provides: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” . 35 U.S.C. § 112 provides in pertinent part, as follows: “The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention. “The specification .shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. * * * “An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” . Plaintiff’s reply brief, p. 11: “Plaintiff does not consider Claims 4, 6, 7, 8, 10, 11 and 12 essential to the protection of his invention, did not rely upon any of them in the court below, believes that defendants’ attack on the particular ground recited is meritorious, and concedes their invalidity.” . 35 U.S.C. § 102 provides in pertinent part, as follows: “A person shall be entitled to a patent unless— (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or * * * * * (g) before the applicant’s invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.” . The trial judge set forth a number of specific findings in his opinion which read in pertinent part, as follows: “The McCutchen device was made in early November, 1955 (Tr. 100), about two weeks before a certain letter was written on November 16, 1955 (Tr. 112, Ex. 6 and Ex. 7). It is true that in 1954 some device was conceived by Dedmon (Tr. 1262-1267). The Dedmon device in its final form, was not completed until some time after Dedmon was employed by Southern Machine Company at its plant at Ft. Oglethorpe, Georgia. Dedmon testifies he went with Southern in June, 1955 (Tr. 1310) and made his device with sixteen needles while there. It was a revised machine following others that he had made a considerable time before. Defendants’ witness Gilbreath said Dedmon came to Southern in early 1955, and that his device was made in the spring of 1955. Dedmon indicates that in June, 1955 he built his device ‘out wider’ with sixteen needles (Tr. 1312). Patent attorney Rommel who prepared application for the Dedmon device did not receive the machine until September 19, 1955 (Tr. 513) and Mr. Gilbreath did not make sketches of the same until October 7, 1955.” . We are referred in MeOutchen’s reply brief to the Patent Office file history of Dedmon’s application in plaintiff’s Exhibit QQ. This exhibit was not designated nor reproduced for the record by the parties and we do not have it before us. Apparently it is undisputed, however, that Dedmon’s patent application was filed on June 5, 1959, after Mc-Cutchen’s patent applied for on January 25, 1956 was issued on March 31, 1959, and that the Patent Office Board of Appeals affirmed the Examiner’s rejection of all of Dedmon’s claims to priority over McCutchen. Defendants contend, however, that Dedmon’s machine was actually in existence prior to McCutchen’s earliest date. . See also Union Paper Bag Mach. Co. v. Advance Bag Co., 6 Cir., 1912,194 F. 126. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_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. NATIONAL WAR LABOR BOARD et al. v. UNITED STATES GYPSUM CO. No. 8695. United States Court of Appeals District of Columbia. Argued Oct. 5, 1944. Decided Oct. 23, 1944. Mr. Arnold Levy, Special Assistant to the Attorney General, with whom Assistant Attorney General Francis M. Shea, Messrs. Edward M. Curran, United States Attorney, of Washington, D. C., and Joseph A. Fanelli, Special Assistant to the Attorney General, and Robert Burstein, Attorney, Department of Justice, of Washington, D. C., were on the brief, for appellants. Mr. John E. MacLeish of the Bar of the Supreme Court of Illinois, of Chicago, 111., pro hac vice, by special leave of Court, with whom Mr. Joseph H. Batt, of Washington, D. C., was on the brief, for appellee. Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices. PER CURIAM. This is a suit for an injunction or a declaratory judgment against a “directive order” which the National War Labor Board issued in May, 1943. The plaintiff is the United States Gypsum Company. The defendants include the Board, its members, the Director of Economic Stabilization, the Economic Stabilization Board, and its members. The defendants moved to dismiss the complaint or, in the alternative, for summary judgment. The District Court denied this motion and we allowed a special appeal. This court afterwards decided Employers Group of Motor Freight Carriers v. National War Labor Board, 79 U.S.App.D.C. -, 143 F.2d 145, certiorari denied 65 S.Ct. 72. That case governs this one. The chief difference is that the Gypsum Company’s complaint alleges that the Boárd has reported the fact of noncompliance to the Director of Economic Stabilization and to the President, whereas the complaint of Employers Group alleged in effect that the Board might make such reports. This difference is not material. The Employers Group case decided that the Board’s order was not enforceable and therefore not reviewable; that any reports which the Board might make would be merely advisory ; and that the correctness of administrative advice cannot be reviewed by the courts. Such advice is no more subject to review after it has been given than before, Reversed. Appellants say in their brief that no such reports have been made. But the question before us is the sufficiency of the complaint. The complaint alleges that the Director, and unnamed agencies of the Government, “are about to or have taken” action to withhold priorities, etc., from plaintiff. This is not a statement of fact but a prediction and has no legal effect. Cf. National War Labor Board v. Montgomery Ward & Co., 79 U.S.App.D.C. —, 144 F.2d 528. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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 SIOUX FALLS BROADCAST ASSOCIATION, Appellant, v. ASSOCIATED PRESS. No. 9904. Circuit Court of Appeals, Eighth Circuit. Dec. 12, 1933. Teigen & Davis, of Sioux Falls, S. D., for appellant. George J. Danforth and Holton Davenport, both of Sioux Falls, S. D., for appellee. PER CURIAM. Appeal docketed and dismissed pursuant . „ * t0 °f Partles; 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:
sc_adminaction	032	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. LYTLE v. HOUSEHOLD MANUFACTURING, INC., dba SCHWITZER TURBOCHARGERS No. 88-334. Argued January 8, 1990 Decided March 20, 1990 Marshall, J., delivered the opinion for a unanimous Court. O’Con-nor, J., filed a concurring opinion, in which Scalia, J., joined, post, p. 556. Judith Reed argued the cause for petitioner. With her on the briefs were Julius LeVonne Chambers, Charles Stephen Ralston, Ronald L. Ellis, Eric Schnapper, and Penda D. Hair. H. Lane Dennard, Jr., argued the cause for respondent. With him on the brief was A. Bmce Clarke. Robert W. Williams, Douglas S. McDowell, and Garen E. Dodge filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance. Justice Marshall delivered the opinion of the Court. In Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979), we held that a court’s determinations of issues in an equitable action could collaterally estop relitigation of the same issues in a subsequent legal action without violating a litigant’s right to a jury trial. Id., at 333. In this case, petitioner brought both equitable and legal claims in the same action, but the District Court erroneously dismissed the legal claims. We must determine whether the District Court’s resolution of the issues raised by petitioner’s equitable claims bars re-litigation of the same issues before a jury in the context of his legal claims. We hold that collateral estoppel does not preclude relitigation of those issues in these circumstances. I John Lytle, an Afro-American, worked as a machinist for Schwitzer Turbochargers, a subsidiary of Household Manufacturing, Inc. On August 11, 1983, Lytle asked his supervisor if he could take a vacation day on Friday, August 12, so that he could see a doctor. Although his supervisor approved that request, the supervisor later told Lytle that he was required to work on Saturday, August 13. Lytle objected because he would be too ill to work on Saturday. He did not report for work on either day, and the parties dispute whether he informed his employer of his intention to be absent both days. Schwitzer classified Lytle’s absences as “unexcused.” Under the company’s discharge policy, more than eight hours of unexcused absences within a 12-month period provides grounds for dismissal. On that basis, Schwitzer fired Lytle. Lytle filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that he had been treated differently from white workers who had missed work. At the same time, Lytle applied for jobs with other employers, several of whom sought references from Schwitzer. Lytle alleges that his job search was unsuccessful because Schwitzer provided prospective employers only with Lytle’s dates of employment and his job title. After receiving a right to sue letter from the EEOC, Lytle filed this action seeking monetary and injunctive relief under both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. §2000e et seq. (1982 ed.), and 16 Stat. 144, 42 U. S. C. § 1981 (1982 ed.). He alleged that Schwitzer had discharged him because of his race and had retaliated against him for filing a charge with the EEOC by providing inadequate references to prospective employers. In his complaint, Lytle requested a jury trial on all issues triable by a jury. At the beginning of the trial, the District Court dismissed Lytle’s § 1981 claims, concluding that Title VII provided the exclusive remedy for Lytle’s alleged injuries. The District Court then conducted a bench trial on the Title VII claims. At the close of Lytle’s case in chief, the court granted Schwitzer’s motion to dismiss the claim of discriminatory discharge pursuant to Federal Rule of Civil Procedure 41(b) (“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence”). After both parties had presented all their evidence, the judge entered a judgment in favor of Schwitzer on the retaliation claim. The Court of Appeals affirmed, 831 F. 2d 1057 (CA4 1987) (judgment order), but noted that the dismissal of the § 1981 claims was “apparently erroneous” because “Title VII and §1981 remedies [are] separate, independent and distinct.” App. to Pet. for Cert. 7a, n. 2. Nevertheless, it ruled that the District Court’s findings with respect to the Title VII claims collaterally estopped Lytle from litigating his § 1981 claims because the elements of a cause of action under § 1981 are identical to those under Title VII. The Court of Appeals rejected Lytle’s claim that the Seventh Amendment precluded according collateral-estoppel effect to the District Court’s findings, reasoning that the judicial interest in economy of resources overrode Lytle’s interest in relitigating the issues before a jury. We granted certiorari, 492 U. S. 917 (1989), and now reverse. II The Seventh Amendment preserves the right to trial by jury in “Suits at common law.” Respondent does not dispute that, had the District Court not dismissed Lytle’s § 1981 claims, Lytle would have been entitled to a jury trial on those claims. See Patterson v. McLean Credit Union, 491 U. S. 164, 211-212, 216 (1989) (Brennan, J., concurring in judgment in part and dissenting in part). When legal and equitable claims are joined in the same action, “the right to jury trial on the legal claim, including all issues common to both claims, remains intact.” Curtis v. Loether, 415 U. S. 189, 196, n. 11 (1974). Further, had the § 1981 claims remained in the suit, a jury would have been required to resolve those claims before the court considered the Title VII claims, because “only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 510-511 (1959) (footnote omitted). Accord, Dairy Queen, Inc. v. Wood, 369 U. S. 469, 473 (1962). The Court in Beacon Theatres emphasized the importance of the order in which legal and equitable claims joined in one suit would be resolved because it “thought that if an issue common to both legal and equitable claims was first determined by a judge, relitigation of the issue before a jury might be foreclosed by res judicata or collateral estoppel.” Parklane Hosiery Co., 439 U. S., at 334. In Parklane Hosiery Co., this Court held that “an equitable determination can have collateral-estoppel effect in a subsequent legal action and that this estoppel does not violate the Seventh Amendment.” Id., at 335 (emphasis added). In that case, a judgment had already been issued by a District Court and affirmed on appeal in a suit in which a jury trial was not constitutionally required. This Court held that the District Court’s resolution of issues in that case collaterally estopped relitigation of the same issues in a second, separate action, even though the plaintiff was entitled to a jury trial in the second action. Respondent argues that this case is governed by Parklane Hosiery Co., rather than by Beacon Theatres, because the District Court made its findings when no legal claims were pending before it. In respondent’s view, if an appellate court finds that a trial court’s dismissal of legal claims was erroneous and remands the legal claims to the trial court, that case would in effect constitute a separate action and therefore be subject to collateral estoppel under Parklane Hosiery Co. We are not persuaded. Only the District Court’s erroneous dismissal of the § 1981 claims enabled that court to resolve issues common to both claims, issues that otherwise would have been resolved by a jury. But for that erroneous ruling, this case would be indistinguishable from Beacon Theatres and Dairy Queen. It would be anomalous to hold that a district court may not deprive a litigant of his right to a jury trial by resolving an equitable claim before a jury hears a legal claim raising common issues, but that a court may accomplish the same result by erroneously dismissing the legal claim. Such a holding would be particularly unfair here because Lytle was required to join his legal and equitable claims to avoid the bar of res judicata. See Harnett v. Billman, 800 F. 2d 1308, 1315 (CA4 1986) (holding that prior adjudication barred a claim that arose out of the same transactions and that could have been raised in prior suit). Our conclusion is consistent with this Court’s approach in cases involving a wrongful denial of a petitioner’s right to a jury trial on legal issues. In such cases, we have never accorded collateral-estoppel effect to the trial court’s factual determinations. Instead, we have reversed and remanded each case in its entirety for a trial before a jury. See Meeker v. Ambassador Oil Corp., 375 U. S. 160 (1963) (per curiam) (reversing trial court’s decision to try equitable claims first and thereby to bar jury trial on legal claims that relied on the same facts); Tull v. United States, 481 U. S. 412 (1987) (reversing and remanding claims for monetary penalties and injunctive relief because trial court improperly denied plaintiff a jury trial on the claims for monetary penalties); Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 (1989) (reversing and remanding Bankruptcy Court’s judgment because petitioners were denied a jury trial and according no weight to trial judge’s factual findings). Furthermore, the purposes served by collateral estoppel do not justify applying the doctrine in this case. Collateral estoppel protects parties from multiple lawsuits and the possibility of inconsistent decisions, and it conserves judicial resources. Montana v. United States, 440 U. S. 147, 153-154 (1979). Application of collateral estoppel is unnecessary here to prevent multiple lawsuits because this case involves one suit in which the plaintiff properly joined his legal and equitable claims. Moreover, our refusal to apply collateral estoppel does not dissipate judicial resources in “needless litigation” over previously resolved issues, Parklane Hosiery Co., 439 U. S., at 326. Although our holding requires a new trial in this case, we view such litigation as essential to vindicating Lytle’s Seventh Amendment rights. The relitigation of factual issues before a jury is no more “needless” in this context than in cases in which a trial court erroneously concludes that a claim is equitable rather than legal, see, e. g., Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962), or that resolution of an equitable claim can precede resolution of a legal claim, see, e. g., Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959). In all of these circumstances, relitigation is the only mechanism that can completely correct the error of the court below. Thus, concern about judicial economy, to the extent that it supports respondent’s position, remains an insufficient basis for departing from our longstanding commitment to preserving a litigant’s right to a jury trial. Ill Respondent argues that notwithstanding our resolution of the collateral-estoppel issue, we should affirm the Court of Appeals’ judgment because the record indicates that the District Court would have directed a verdict in favor of respondent on the § 1981 claims even if those claims had been litigated before a jury. This argument is not compelling with respect to either the discriminatory discharge claim or the retaliation claim. Pursuant to Federal Rule of Civil Procedure 41(b), the District Court dismissed the Title VII claim relating to allegations of discriminatory discharge. After making several factual findings on the basis of evidence adduced by Lytle, Tr. 258, the court concluded that he had not established a prima facie case. Id., at 259. Respondent contends that this ruling establishes that the court would also have directed a verdict against Lytle on his similar § 1981 claim because that claim required proof of the same prima facie case. Respondent’s reasoning ignores the important distinction between a dismissal under Rule 41(b) and a directed verdict under Rule 50(a). Rule 41(b) allows the court “as trier of the facts” to determine the facts and the law “and render judgment against the plaintiff or . . . decline to render any judgment until the close of all the evidence.” In contrast, in considering a motion for a directed verdict, the court does not weigh the evidence, but draws all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge .... The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”). Thus, although a court might, after reviewing the evidence, decide in favor of the party moving for a dismissal under Rule 41(b), that court might not take the same case away from the jury because it might believe that the jury could reasonably find for the nonmoving party. The District Court’s observation that Lytle’s interpretation of the evidence supporting his discriminatory discharge claims was “reasonable,” Tr. 253, supports our conclusion that that court would not necessarily have granted a directed verdict on Lytle’s similar § 1981 claim. Respondent’s argument with respect to Lytle’s allegations of retaliation is even further off base. The District Court declined to dismiss the retaliation claim, finding that Lytle had adduced some evidence of disparate treatment, Tr. 256, 257, and required respondent to present evidence on that issue. After both parties presented closing statements, the court found no evidence of discrimination on the part of respondent, id., at 301, and then entered a judgment in respondent’s favor. Nothing in the record indicates that the court reached the only reasonable conclusions or that a jury could not have found the facts differently and entered a different verdict. As we have long recognized, a jury and a judge can draw different conclusions from the same evidence. See, e. g., Railroad Co. v. Stout, 17 Wall. 657, 664 (1874). Thus, we are not convinced that the District Court would have granted a motion for a directed verdict on Lytle’s § 1981 claim concerning retaliation. IV We decline to extend Parklane Hosiery Co., supra, and to accord collateral-estoppel effect to a district court’s determinations of issues common to equitable and legal claims where the court resolved the equitable claims first solely because it erroneously dismissed the legal claims. To hold otherwise would seriously undermine a plaintiff’s right to a jury trial under the Seventh Amendment. We therefore vacate the judgment of the Fourth Circuit, vacate the decision of the District Court with respect to Lytle’s Title VII claims, and remand for proceedings consistent with this opinion. It is so ordered. Justice O’Connor, with whom Justice Scalia joins, concurring. I join the Court’s opinion but write separately to note what the Court acknowledges in the last sentence of a footnote, see ante, at 551-552, n. 3: that the question whether petitioner has stated a valid claim under § 1981 remains open. In the District Court, petitioner claimed that respondent had fired him because of his race and retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission. Ante, at 548. As Patterson v. McLean Credit Union, 491 U. S. 164 (1989), was decided after the Court of Appeals issued its decision, the applicability of § 1981 to these claims was not specifically addressed. This Court’s usual practice is to decline to address questions raised for the first time here. See United States v. Mendenhall, 446 U. S. 544, 551-552, n. 5 (1980); Youakim v. Miller, 425 U. S. 231, 234 (1976). The Court adheres to this practice, noting that arguments based on Patterson neither were “presented to either court below” nor are to be found “in the record.” Ante, at 552, n. 3. The Court correctly concludes that there is “therefore . . . nothing in the record to justify affirming the Fourth Circuit’s judgment” at this juncture. Ibid. On remand, therefore, the parties will have ample opportunity to present arguments, and the lower courts will have the first opportunity to consider whether either of petitioner’s charges relates to the formation or enforcement of a contract, the two types of claims actionable under § 1981, Patterson, 491 U. S., at 176-178, or relates only to “postformation conduct unrelated to an employee’s right to enforce [his] contract.” Id., at 180. Under Fourth Circuit precedent, a plaintiff does not have a right to a jury trial on a Title VII claim. See Keller v. Prince George’s County, 827 F. 2d 952, 955 (1987). This Court has not ruled on the question whether a plaintiff seeking relief under Title VII has a right to a jury trial. See Chauffeurs, Teamsters and Helpers v. Tetry, post, at 572. Because Lytle does not argue that he was entitled to a jury trial on his Title VII claims, we express no opinion on that issue here. Instead, we assume for purposes of this opinion that he has no such right. The Fourth Circuit’s decision to apply collateral estoppel in this situation directly conflicts with the Seventh Circuit’s decision in Hussein v. Oshkosh Motor Truck Co., 816 F. 2d 348 (1987). Respondent argues that dismissal of Lytle’s § 1981 claims was not erroneous because Lytle’s allegations do not state § 1981 claims in light of this Court’s decision in Patterson v. McLean Credit Union, 491 U. S. 164 (1989). Under our Rules, “[o]nly the questions set forth in the petition, or fairly included therein, will be considered by the Court.” This Court’s Rule 14.1(a). The question of Patterson’s effect on Lytle’s claims is not even remotely related to the question on which we granted certiorari. See Pet. for Cert, i (“Did the Fourth Circuit correctly hold that district court violations of the Seventh Amendment are unreviewable by the appellate courts if the trial judge, after violating the Amendment by refusing to empanel a jury, compounds that constitutional infraction by deciding himself the very factual issue which should have been presented to and decided by a jury?”). Respondent nonetheless contends that, whether or not the Patterson issue is fairly included in the question presented, the Court can consider its argument because, as the prevailing party below, it may “defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.” Washington v. Yakima Indian Nation, 439 U. S. 463, 476, n. 20 (1979). The argument that the allegations of discriminatory discharge and retaliation did not concern conduct within the scope of § 1981 as defined by Patterson, however, was not presented to either court below, nor is it supported by arguments in the record. We therefore find nothing in the record to justify affirming the Fourth Circuit’s judgment on the ground that Lytle has not stated a cause of action under § 1981. Respondent also argues that because Patterson was decided after Lytle filed his petition for a writ of certiorari but before we granted the petition, the Court can consider that decision’s effect on Lytle’s § 1981 claims. In other words, respondent claims that the intervening decision is an extraordinary circumstance that justifies departing from our Rules. We are not persuaded that an exception is warranted in this case. Applying our analysis in Patterson to the facts of a particular case without the benefit of a full record or lower court determinations is not a sensible exercise of this Court’s discretion. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320, n. 6 (1971); Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 896, n. 7 (1984). Cf. Piccirillo v. New York, 400 U. S. 548 (1971) (dismissing a writ of certiorari as improvidently granted because both parties agreed that an intervening state-court judgment rendered any decision by this Court meaningless). On remand, the Fourth Circuit should consider the impact of Patterson on Lytle’s § 1981 claims. Vacating the District Court’s determination regarding Lytle’s Title VII claims is required to afford Lytle complete and consistent relief. Had his § 1981 claims not been dismissed, the jury’s determination of legal and factual issues could not have been disregarded when the District Court considered his equitable claims. Moreover, vacating the District Court’s judgment avoids the possibility of inconsistent determinations. See Montana v. United States, 440 U. S. 147, 154 (1979) (noting that inconsistent decisions pose threat of diminishing reliance on the judiciary). Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
songer_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. LOCAL NO. 1903 OF the INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW; Gary Swanson, President of Local No. 1903; Jack Harney, Recording Secretary of Local No. 1903; Joan Rasmussen, Vice President of Local No. 1903; William Wolfenbarger, Secretary and Treasurer of Local No. 1903; John Doe and Mary Doe, Members of Local No. 1903, et al., Plaintiffs-Appellants, v. BEAR ARCHERY, Division of Victor Comptometer Corporation; Robert F. Kelly, President of Bear Archery, Division of Victor Comptometer; Nelson A. Miles, Attorney for Defendant Bear Archery, Defendant City of Grayling, Defendant Chief of Police Stephan, and Defendant City Police Department; Peter Stephan, individually and as Chief of Police, City of Grayling, Michigan; City of Grayling, Michigan; Harold Hatfield, Jr., individually and as Sheriff of Crawford County, Michigan; Crawford County Sheriff Department; John B. Huss, individually and as County Prosecutor, County of Crawford, Michigan; and Crawford County, Michigan, Defendants-Appellees. No. 78-1012. United States Court of Appeals, Sixth Circuit. Argued Jan. 30, 1980. Decided March 6, 1980. William Rastetter, Cedar, Mich., James M. Olson, Traverse City, Mich., Robert A. Hess, Roscommon, Mich., Leonard R. Page, Detroit, Mich., L. Kent Walton, Traverse City, Mich., Alan V. Reuther, Asst. Gen. Counsel, Detroit, Mich., for plaintiffs-appellants. Douglas J. Read, Williams, Coulter, Cunningham, Davison & Read, Traverse City Mich., for Crawford Co. Richard W. Ford, Running, Wise & Wilson, Robert E. Kuhn, Traverse City, Mich., for Grayling Co. Before EDWARDS, Chief Judge, KEITH, Circuit Judge, and WISEMAN, District Judge. Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee, sitting by designation. PER CURIAM. This appeal is taken from a District Court’s judgment dismissing a civil rights action brought pursuant to 28 U.S.C. § 1331(a) (1976), claiming a right to relief under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988 (1976), as well as the Fifth and Fourteenth Amendments to the Constitution of the United States. The underlying dispute grows out of asserted collective bargaining rights on the part of plaintiff, Local No. 1903 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (henceforth UAW) which asserted rights were denied by defendant, Bear Archery, Division of Victor Comptometer Corporation (henceforth Bear Archery). The dispute in question resulted in a strike which served to divide the City of Grayling, Michigan and the County of Crawford in bitter controversy. At the aftermath of the strike, the UAW filed the instant complaint, alleging (among other things): Defendants herein under color of law have by act or neglect deprived Plaintiffs of their constitutionally and federally protected rights of speech, picketing, sign communication or other forms of communicative or informational expression; or Defendants have by act or neglect chilled the exercise of such rights and privileges; the acts or neglect or omissions consist of in part the following: Following the paragraph just quoted above, plaintiff-appellant recited (in 20 separate paragraphs) a variety of asserted actions on the part of city and county officials which they rely on as constituting injury. The District Judge in the Eastern District of Michigan who heard this case held that defendants Crawford County, Crawford County Sheriff Department, City of Grayl-ing and City of Grayling Police Department are absolutely immune from suit under 42 U.S.C. § 1983 (1976): Said defendants are not persons under 42 USC 1983, and no cause of action can be found against them unless they are subject to having liability imposed vicariously under the doctrine of respondeat superior. However, this doctrine also does not apply to suits under 42 USC 1983. After the District Judge’s decision in this case, the Supreme Court of the United States decided Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1958). In a lengthy analysis the Supreme Court overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), to the extent that it was inconsistent with the holdings in Monell, supra. In the opinion of the Court, the Supreme Court stated: Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142 (1970): “Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor — or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. We begin with the language of § 1983 as passed: u[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . 17 Stat. 13 (emphasis added). The italicized language plainly imposes liability on a government that, under col- or of some official policy, “causes” an employee to violate another’s constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent. See Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 602, 46 L.Ed.2d 561 (1976). Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e. g., ibid.; 2 F. Harper & F. James, The Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See, e. g., id., § 26.5; Prosser, supra, at 459. The first justification is of the same sort that was offered for statutes like the Sherman amendment: “The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation.” Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: “we do not look upon [the Sherman amendment] as a punishment . . . . It is a mutual insurance.” Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment. We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day. Monell v. New York City Department of Social Services, 436 U.S. at 690-695, 98 S.Ct. at 2035-2038. Under these circumstances, we vacate the judgment of the District Court previously referred to and remand for further consideration of this case under the standards quoted above of Monell v. New York City Department of Social Services, supra. There is certainly no constitutional impediment to municipal liability. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” Milliken v. Bradley, 433 U.S. 267, 291 [97 S.Ct. 2749, 2762, 53 L.Ed.2d 745] (1977); see Ex parte Virginia, 100 U.S., [339] at 347-348 [25 L.Ed. 676], For this reason, National League of Cities v. Usery, 426 U.S. 833 [96 S.Ct. 2465, 49 L.Ed.2d 245] (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See, e. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 [96 S.Ct. 2666, 2671, 49 L.Ed.2d 614] (1976); Lincoln County v. Luning, 133 U.S. 529, 530 [10 S.Ct. 363, 33 L.Ed. 766] (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes. Since official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent — at least where Eleventh Amendment considerations do not control analysis — our holding today that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are “persons” under § 1983 in those cases in which, as here, a local government would be suable in its own name. See also Mr. Justice Frankfurter’s statement for the Court in Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369 [60 S.Ct. 968, 972, 84 L.Ed. 1254] (1940): “It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” Support for such a conclusion can be • found in the legislative history. As we have indicated, there is virtually no discussion of § 1 of the Civil Rights Act. Again, however, Congress’ treatment of the Sherman amendment gives a clue to whether it would have desired to impose respondeat superior liability. The primary constitutional justification for the Sherman amendment was that it was a necessary and a proper remedy for the failure of localities to protect citizens as the Privileges or Immunities Clause of the Fourteenth Amendment required. See supra, at 670-673. And according to Sherman, Shellabarger, and Edmunds, the amendment came into play only when a locality was at fault or had knowingly neglected its duty to provide protection. See Globe 761 (Sen. Sherman); id., at 756 (Sen. Edmunds); id., at 751-752 (Rep. Shellabarger). But other proponents of the amendment apparently view it as a form of vicarious liability for the unlawful acts of the citizens of the locality. See id., at 792 (Rep. Butler). And whether intended or not, the amendment as drafted did impose a species of vicarious liability on municipalities since it could be construed to impose liability even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it. Indeed, the amendment held a municipality liable even if it had done everything in its power to curb the riot. See supra, at 668; Globe 761 (Sen. Stevenson); id., at 771 (Sen. Thurman); id., at 788 (Rep. Kerr); id., at 791 (Rep. Willard). While the first conference substitute was rejected principally on constitutional grounds, see id., at 804 (Rep. Poland), it is plain from the text of the second conference substitute — which limited liability to those who, having the power to intervene against Ku Klux Klan violence, “neglect[ed] or refuse[d] so to do,” see Appendix to this opinion, infra, at 704, and which was enacted as § 6 of the 1871 Act and is now codified as 42 U.S.C. § 1986 — that Congress also rejected those elements of vicarious liability contained in the first conference substitute even while accepting the basic principle that the inhabitants of a community were bound to provide protection against the Ku Klux Klan. Strictly speaking, of course, the fact that Congress refused to impose vicarious liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality’s employees. Nonetheless, when Congress’ rejection of the only form of vicarious liability presented to it is combined with the absence of any language in § 1983 which can easily be construed to create respondeat superior liability, the inference that Congress did not intend to impose such liability is quite strong. A third justification, often cited but which on examination is apparently insufficient to justify the doctrine of respondeat superior, see, e. g., 2 F. Harper & F. James, § 26.3, is that liability follows the right to control the actions of a tortfeasor. By our decision in Rizzo v. Goode, 423 U.S. 362 [, 96 S.Ct. 598, 46 L.Ed.2d 561] (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See id., at 370-371 [, 96 S.Ct. at 602]. 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:
sc_adminaction	117	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. HAGANS et al. v. LA VINE, COMMISSIONER, NEW YORK DEPARTMENT OF SOCIAL SERVICES, et al. No. 72-6476. Argued December 11, 1973 Decided March 25, 1974 White, J., delivered the opinion of the Court, in which Douglas, BrenNAN, Stewart, Marshall, and BlacicmuN, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 550. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Powell, J., joined, post, p. 552. Carl Jay Nathanson argued the cause for petitioners, With him on the briefs were Steven J. Cole and Henry A. Freedman. Michael Colodner, Assistant Attorney General of New York, argued the cause for respondent Lavine. With him on the brief were Louis J. Lejkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. Me. Justice White delivered the opinion of the Court. Petitioners, recipients of public assistance under the cooperative federal-state Aid to Families With Dependent Children (AFDC) program, brought this action in the District Court for themselves and their infant children and as representatives of other similarly situated AFDC recipients. Their suit challenged a provision of the New York Code of Rules and Regulations permitting the State to recoup prior unscheduled payments for rent from subsequent grants under the AFDC program. They alleged that the recoupment regulation violated the Equal Protection Clause of the Fourteenth Amendment and contravened the pertinent provisions of the Social Security Act governing AFDC and the regulations promulgated thereunder by the administering federal agency, the Department of Health, Education, and Welfare (HEW). The action sought injunctive and declaratory relief pursuant to 42 U. S. C. § 1983 and 28 U. S. C. § 2201, and jurisdiction was invoked under 28 U. S. C. §§ 1343 (3) and (4). The District Court found that the equal protection claim was substantial and provided a basis for pendent jurisdiction to adjudicate the so-called “statutory” claim — the alleged conflict between state and federal law. After hearing, the trial court declared the recoupment regulation contrary to the Social Security Act and HEW regulations and enjoined its implementation or enforcement. Following a remand, the Court of Appeals reversed, holding that because petitioners had failed to present a substantial constitutional claim, the District Court lacked jurisdiction to entertain either the equal protection or the statutory claim. 471 F. 2d 347 (CA2 1973). The jurisdictional question being an important one, we granted certiorari. 412 U. S. 938 (1973). For reasons set forth below, we hold that the District Court had jurisdiction under 28 U. S. C. § 1343 (3) to consider petitioners’ attack on the recoupment regulation. I Petitioners brought this action under 42 U. S. C. § 1983, which provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” By its terms, § 1983 embraces petitioners’ claims that the challenged regulation enforced by respondent state and county welfare officials deprives them of a right “secured by the Constitution and laws,” viz., the equal protection of the laws. But the federal cause of action created by the section does not by itself confer jurisdiction upon the federal district courts to adjudicate these claims. Accordingly, petitioners relied principally upon 28 U. S. C. § 1343 (3): “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States . . . Concededly, § 1343 authorizes a civil action to “redress the deprivation, under color of any State . . . regulation ... of any right . . . secured by the Constitution of the United States." Section 1343 (3) therefore conferred jurisdiction upon the District Court to entertain the constitutional claim if it was of sufficient substance to support federal jurisdiction. If it was, it is also clear that the District Court could hear as a matter of pendent jurisdiction the claim of conflict between federal and state law, without determining that the latter claim in its own right was encompassed within § 1343. Rosado v. Wyman, 397 U. S. 397, 402-405 (1970); see also N. Y. Dept. of Social Services v. Dublino, 413 U. S. 405, 412 n. 11 (1973). The Court of Appeals ruled that petitioners had not tendered a substantial constitutional claim and ordered dismissal of the entire action for want of subject matter jurisdiction. The principle applied by the Court of Appeals — that a “substantial” question was necessary to support jurisdiction — was unexceptionable under prior cases. Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are “so attenuated and unsubstantial as to be absolutely devoid of merit,” Newburyport Water Co. v. Newburyport, 193 U. S. 561, 579 (1904); “wholly insubstantial,” Bailey v. Patterson, 369 U. S. 31, 33 (1962); “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288 (1910); “plainly unsubstantial,” Levering & Garrigues Co. v. Morrin, 289 U. S. 103, 105 (1933); or “no longer open to discussion,” McGilvra v. Ross, 215 U. S. 70, 80 (1909). One of the principal decisions on the subject, Ex ;parte Poresky, 290 U. S. 30, 31-32 (1933), held, first, that “[i]n the absence of diversity of citizenship, it is essential to jurisdiction that a substantial federal question should be presented”; second, that a three-judge court was not necessary to pass upon this initial question of jurisdiction; and third, that “[t]he question may be plainly unsubstantial, either because it is 'obviously without merit’ or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.’ Levering & Garrigues Co. v.” Morrin, supra; Hannis Distilling Co. v. Baltimore, 216 U. S. 285, 288; McGilvra v. Ross, 215 U. S. 70, 80.” Only recently this Court again reviewed this general question where it arose in the context of convening a three-judge court under 28 U. S. C. § 2281: “ 'Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U. S., at 33; ‘wholly insubstantial,’ ibid,.; ‘obviously frivolous,’ Hannis Distilling Co. y. Baltimore, 216 U. S. 285, 288 (1910); and ‘obviously without merit,’ Ex parte Poresky, 290 U. S. 30, 32 (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U. S. C. § 2281. A claim is insubstantial only if ' “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garri-gues Co. v. Morrin, 289 U. S. 103, 105-106 (1933); McGilvra v. Ross, 215 U. S. 70, 80 (1909).” Goosby v. Osser, 409 U. S. 512, 518 (1973). The substantiality doctrine as a statement of jurisdictional principles affecting the power of a federal court to adjudicate constitutional claims has been questioned, Bell v. Hood, 327 U. S. 678, 683 (1946), and characterized as “more ancient than analytically sound,” Rosado v. Wyman, supra, at 404. But it remains the federal rule and needs no re-examination here, for we are convinced that within accepted doctrine petitioners' complaint alleged a constitutional claim sufficient to confer jurisdiction on the District Court to pass on the controversy. Jurisdiction is essentially the authority conferred by Congress to decide a given type of case one way or the other. The Fair v. Kohler Die Co., 228 U. S. 22, 25 (1913). Here, §§ 1343 (3) and 1983 unquestionably authorized federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional rights. It is also plain that the complaint formally alleged such a deprivation. The District Court’s jurisdiction, a matter for threshold determination, turned on whether the question was too insubstantial for consideration. In Dandridge v. Williams, 397 U. S. 471 (1970), AFDC recipients challenged the Maryland maximum grant regulation on equal protection grounds. We held that the issue should be resolved by inquiring whether the classification had a rational basis. Finding that it did, we sustained the regulation. But Dandridge evinced no intention to suspend the operation of the Equal Protection Clause in the field of social welfare law. State laws and regulations must still “be rationally based and free from invidious discrimination.” Id., at 487. See Jefferson v. Hackney, 406 U. S. 535, 546 (1972); Carter v. Stanton, 405 U. S. 669, 671 (1972); cf. San Antonio School District v. Rodriguez, 411 U. S. 1 (1973). Judged by this standard, we cannot say that the equal protection issue tendered by the complaint was either frivolous or so insubstantial as to be beyond the jurisdiction of the District Court. We are unaware of any cases in this Court specifically dealing with this or any similar regulation and settling the matter one way or the other. Nor is it immediately obvious to us from the face of the complaint that recouping emergency rent payments from future welfare disbursements, which petitioners argue deprived needy children because of parental default, was so patently rational as to require no meaningful consideration. The Court of Appeals rightly felt obliged to measure petitioners’ complaint that the challenged regulation violated the Equal Protection Clause “by discriminating irrationally and invidiously between different classes of recipients” against the standard prescribed by Dan-dridge. The Court of Appeals then reasoned that without the recoupment regulation, those who were subject to it would be preferred over those who had paid their full rent out of their normal monthly grant. The court further reasoned that the regulation provided an incentive for welfare recipients to properly manage their grants and not become delinquent in their rent. It concluded that the regulation was rationally based and that no substantial constitutional question within the jurisdiction of the District Court had been presented. This reasoning with respect to the rationality of the regulation and its propriety under the Equal Protection Clause may ultimately prove correct, but it is not immediately obvious from the decided cases or so “very plain” under the Equal Protection Clause. We think the admonition of Bell v. Hood, 327 U. S. 678 (1946), should be followed here: “Jurisdiction ... is not defeated as respondents seem to contend, by the possibility that the aver-ments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.” Id., at 682 (citations omitted). As was the case in Bell v. Hood, we cannot “say that the cause of action alleged is so patently without merit as to justify, even under the qualifications noted, the court’s dismissal for want of jurisdiction.” Id., at 683. Nor can we say that petitioners’ claim is "so insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court, whatever may be the ultimate resolution of the federal issues on the merits.” Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 666-667 (1974). (Citations omitted.) II Given a constitutional question over which the District Court had jurisdiction, it also had jurisdiction over the “statutory” claim. See supra, at 536. The latter was to be decided first and the former not reached if the statutory claim was dispositive. California Human Resources Dept. v. Java, 402 U. S. 121, 124 (1971); Dandridge v. Williams, 397 U. S., at 475-476; Rosado v. Wyman, 397 U. S., at 402; King v. Smith, 392 U. S. 309 (1968). The constitutional claim could be adjudicated only by a three-judge court, but the statutory claim was within the jurisdiction of a single district judge. Swift & Co.v. Wickham, 382 U. S. Ill (1965); Rosado v. Wyman, supra, at 403. Thus, the District Judge, sitting alone, moved directly to the statutory claim. His decision was appealed to the Court of Appeals, although had a three-judge court been convened, an injunction issued, and the statutory ground alone decided, the appeal would be only to this Court under 28 U. S. C. § 1253. The procedure followed by the District Court — initial determination of substantiality and then adjudication of the “statutory” claim without convening a three-judge court — may appear at odds with some of our prior decisions. See, e. g., Engineers v. Chicago, R. I. & P. R. Co., 382 U. S. 423 (1966); Florida Lime & Avocado Grow ers v. Jacobsen, 362 U. S. 73 (1960). But, we think it accurately reflects the recent evolution of three-judge-court jurisprudence, “this Court's concern for efficient operation of the lower federal courts,” and “the constrictive view of the three-judge [court] jurisdiction which this Court has traditionally taken.” Swift & Co. v. Wickham, supra, at 128, 129 (citations omitted). In Rosado v. Wyman, supra, at 403, we suggested that “[e]ven had the constitutional claim not been declared moot, the most appropriate course may well have been to remand to the single district judge for findings and the determination of the statutory claim rather than encumber the district court, at a time when district court calendars are overburdened, by consuming the time of three federal judges in a matter that was not required to be determined by a three-judge court. See Swift & Co. v. Wickham, 382 U. S. Ill (1965).” It is true that the constitutional claim would warrant convening a three-judge court and that if a single judge rejects the statutory claim, a three-judge court must be called to consider the constitutional issue. Nevertheless, the coincidence of a constitutional and statutory claim should not automatically require a single-judge district court to defer to a three-judge panel, which, in view of what we have said in Rosado v. Wyman, supra, could then merely pass the statutory claim back to the single judge. See Kelly v. Illinois Bell Telephone Co., 325 F. 2d 148, 151 (CA7 1963); Chicago, Duluth & Georgian Bay Transit Co. v. Nims, 252 F. 2d 317, 319-320 (CA6 1958); Doe v. Lavine, 347 F. Supp. 357, 359-360 (SDNY 1972); cf. Bryant v. Carleson, 444 F. 2d 353, 358-359 (CA9 1971). “In fact, it would be grossly inefficient to send a three-judge court a claim which will only be sent immediately back. This inefficiency is especially apparent if the single judge’s decision resolves the case, for there is then no need to convene the three-judge court.” Norton v. Richardson, 352 F. Supp. 596, 599 (Md. 1972) (citations omitted). Section 2281 does not forbid this practice, and we are not inclined to read that statute “in isolation with mutilating literalness . . . .” Florida Lime & Avocado Growers v. Jacobsen, supra, at 94 (Frankfurter, J., dissenting). Ill Taking a jaundiced view of the constitutional claim, the dissenters would have the District Court dismiss the Supremacy Clause (“statutory”) issue, convene a three-judge court, and reject the constitutional claim, all of this, apparently, as an exercise of the discretion which the District Court, under Mine Workers v. Gibbs, 383 U. S. 715 (1966), is claimed to have over the pendent federal claim. But Gibbs was oriented to state law claims pendent to federal claims conferring jurisdiction on the District Court. Pendent jurisdiction over state claims was described as a doctrine of discretion not to be routinely exercised without considering the advantages of judicial economy, convenience, and fairness to litigants. For, “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” Id., at 726 (footnote omitted). In light of the dissent’s treatment of Gibbs, several observations are appropriate. First, it is evident from Gibbs that pendent state law claims are not always, or even almost always, to be dismissed and not adjudicated. On the contrary, given advantages of economy and convenience and no unfairness to litigants, Gibbs contemplates adjudication of these claims. Second, it would reasonably follow that other considerations may warrant adjudication rather than dismissal of pendent state claims. In Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909) the Court held that the state issues should be decided first and because these claims were dispositive, federal questions need not be reached: “Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.” Id., at 193. Siler is not an oddity. The Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims. See, e. g., Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298, 303-304, 310 (1913); Ohio Tax Cases, 232 U. S. 576, 586-587 (1914); Greene v. Louisville & Interurban R. Co., 244 U. S. 499, 508-509 (1917); Louisville & Nashville R. Co. v. Greene, 244 U. S. 522, 527 (1917); Davis v. Wallace, 257 U. S. 478, 482, 485 (1922); Chicago G. W. R. Co. v. Kendall, 266 U. S. 94, 97-98 (1924); Cincinnati v. Vester, 281 U. S. 439, 448-449 (1930); Hillsborough v. Cromwell, 326 U. S. 620, 629 (1946). The doctrine is not ironclad, see Sterling v. Constantin, 287 U. S. 378, 393-394, 396 (1932), but it is recurringly applied, and, at the very least, it presumes the advisability of deciding first the pendent, nonconstitutional issue. Gibbs did not cite Siler or like cases, nor did it purport to change the ordinary rule that a federal court should not decide federal constitutional questions where a dis-positive nonconstitutional ground is available. The dissent uncritically relies on Siler but ignores the preference stated in that case for deciding nonconstitutional claims even though they are pendent and, standing alone, are beyond the jurisdiction of the federal court. Third, the rationale of Gibbs centers upon considerations of comity and the desirability of having a reliable and final determination of the state claim by state courts having more familiarity with the controlling principles and the authority to render a final judgment. These considerations favoring state adjudication are wholly irrelevant where the pendent claim is federal but is itself beyond the jurisdiction of the District Court for failure to satisfy the amount in controversy. In such cases, the federal court’s rendition of federal law will be at least as sure-footed and lasting as any judgment from the state courts. The most relevant cases for our purposes, of course, are those decisions such as King v. Smith, 392 U. S. 309 (1968), Rosado v. Wyman, 397 U. S. 397 (1970), and Dandridge v. Williams, 397 U. S. 471 (1970), where the jurisdictional claim arises under the Federal Constitution and the pendent claim, although denominated “statutory,” is in reality a constitutional claim arising under the Supremacy Clause. In these cases the Court has characteristically dealt with the “statutory” claim first “because if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TV A, 297 U. S. 288, 346-347 (Brandéis, J., concurring); Rosenberg v. Fleuti, 374 U. S. 449.” Dandridge v. Williams, supra, at 475-476. In none of these cases did the Court think that with jurisdiction fairly established, a federal court, under Gibbs, must nevertheless decide the constitutional issue and avoid the statutory claim if, upon weighing the two claims, the statutory claim is strong and the constitutional claim weak. On the contrary, Mr. Justice Harlan, writing for the Court in Rosado v. Wyman, and with the principles of Gibbs well in mind, noted that the pendent statutory question was essentially one of federal policy and that the argument for the exercise of pendent jurisdiction was “ ‘particularly strong.’ ” 397 U. S., at 404. And Gibbs itself observed the “special reason for the exercise of pendent jurisdiction” where the Supremacy Clause is implicated: “the federal courts are particularly appropriate bodies for the application of pre-emption principles.” 383 U. S., at 729. The judgment of the Court of Appeals is reversed and the case remanded to that court for further proceedings consistent with this opinion. So ordered. AFDC is one of several major categorical public assistance programs established by the Social Security Act of 1935, and as we described in King v. Smith, 392 U. S. 309, 316-317 (1968), it is founded on a scheme of cooperative federalism: “It is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). 49 Stat. 627, 42 U. S. C. §§ 601, 602, 603, and 604. See [U. S. Advisory Commission Report on Intergovernmental Relations, Statutory and Administrative Controls Associated with Federal Grants for Public Assistance 21-23 (1964)]. The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW. 49 Stat. 627, as amended, 42 U. S. C. § 602 (1964 ed., Supp. II). See also HEW, Handbook of Public Assistance Administration, pt. IV, §§2200, 2300 . . . See also Rosado v. Wyman, 397 U. S. 397, 407-409 (1970). Under the Social Security Act, HEW withholds federal funds for implementation of a state AFDC plan until compliance with the Act and the Department's regulations. HEW may also terminate partially or entirely federal payments if "in the administration of the [state] plan there is a failure to comply substantially with an)provision required by section 602 (a) of [the Act] to be included in the plan.” 42 U. S. C. § 604. See King v. Smith, supra, at 317 n. 12; Rosado v. Wyman, supra, at 420-422. The challenged regulation provides, in pertinent part: “(g) Payment for services and supplies already received. Assistance grants shall be made to meet only current needs. Under the following specified circumstances payment for services or supplies already received is deemed a current need: “(7) For a recipient of public assistance who is being evicted for nonpayment of rent for which a grant has been previously issued, an advance allowance may be provided to prevent such eviction or rehouse the family; and such advance shall be deducted from subsequent grants in equal amounts over not more than the next six months. When there is a rent advance for more than one month, or more than one rent advance in a 12 month period, subsequent grants for rent shall be provided as restricted payments in accordance with Part 381 of this Title.” 18 N. Y. C. R. R. § 352.7 (g) (7). As AFDC recipients, petitioners receive monthly grants calculated to provide 90% of their family needs for shelter, fuel, and other basic necessities. For one reason or another, each petitioner was unable to pay her rent, and faced with imminent eviction, she received emergency rent payments from the Nassau Count}' Department of Social Services. Because the State characterized these payments as “advances,” the amount of these disbursements was deducted or recouped from petitioners’ subsequent monthly familial assistance grants pursuant to § 352.7 (g) (7). Petitioners alleged that the New York State recoupment regulation was contrary to the following provisions of the federal statute and regulations because it assumed, contrary to fact, that those funds, extended Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
songer_othadmis	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" 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". Alfred PILOTTO, Appellant, v. UNITED STATES PAROLE COMMISSION; The United States Bureau of Prisons; and Warden, Federal Correctional Institution, Sandstone, Minnesota, Appellees. No. 87-5417. United States Court of Appeals, Eighth Circuit. Submitted May 11, 1988. Decided Sept. 19, 1988. Peter Thompson, Minneapolis, Minn., for appellant. James Lackner, Minneapolis, Minn., for appellees. Before HEANEY and McMILLIAN, Circuit Judges, and HILL, Senior District Judge. The HONORABLE IRVING HILL, United States Senior District Judge for the District of Central California. HEANEY, Circuit Judge. Alfred Pilotto appeals a decision of the district court denying his petition for a writ of habeas corpus. He contends that the court erred in refusing to require the Federal Parole Commission to set a new presumptive parole date which would result in his being released from federal prison after serving 52 months, rather than after 120 months, the release date set by the Commission. In the alternative, Pilotto asks this Court to require the Parole Commission to give him a new hearing. We affirm the district court’s denial of habeas corpus. Pilotto was convicted of conspiring with others to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d). After a lengthy sentencing hearing, he was sentenced to a term of 20 years. His conviction was affirmed in United States v. Caporale, 806 F.2d 1487, (11th Cir.1986) cert. denied, — U.S. -, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987). Pilotto was given an initial parole hearing on December 5, 1984, at a federal prison in Sandstone, Minnesota. The parole guideline range for the offense of conviction was 40 to 52 months. A panel of the Commission, however, recommended incarceration for a longer period than that established by the guidelines was warranted because “for seven years, [Pilotto] was the principal participant in an unusually extensive and sophisticated criminal enterprise for the purpose of extortion of large sums of money.” The Regional Commission agreed with the recommendation. The National Commissioners adopted the recommendations for the reasons stated by the panel. Pilot-to appealed the decision to the National Appeals Board. The Board affirmed. Pi-lotto then filed the instant writ of habeas corpus with the district court. He claimed in district court and contends here that the Parole Commission: (1) discriminated against him by designating his case as one of “original jurisdiction,” (2) abused its discretion by failing to consider his institutional adjustment and health problems, (3) used inaccurate facts to support its decision to set his parole date above the guidelines, and, in any event, acted arbitrarily in setting the sentence above the guidelines. For the reasons given by the Magistrate, we find no merit to contentions (1) and (2) and do not believe they deserve discussion. The remaining issue is more serious and will be treated at some length. On appeal, the appellant has restated the issues as follows: The district court erred in concluding that the Parole Commission did not act in an arbitrary and irrational manner in continuing appellant six years beyond his guideline range for release to presumptive parole at 120 months, where the stated reason for exceeding the guidelines was a boilerplate description of the offense bringing appellant within the guidelines to begin with, so as not to constitute “good cause” for its decision. We initially consider the allegation that the Parole Commission increased Pilot-to’s sentence on the basis of inaccurate information. At the sentencing hearing, the district court received evidence concerning Pilotto’s involvement in organized crime and his direct involvement in at least one gang killing. The evidence adduced at the sentencing hearing as to his involvement in organized crime was essentially the same as that received at trial. Its accuracy had been fully tested at the trial. Therefore, we reject Pilotto’s contention that its use by the Parole Commission was improper. The evidence as to the alleged killings, however, presents a different situation. This evidence was first introduced at the sentencing hearing and its accuracy has not been subjected to the rigorous scrutiny of a full trial. Moreover, its production was not subjected to the stringent eviden-tiary and constitutional requirements afforded one who faces criminal sanctions. Thus, if the record before us showed that the Parole Commission used this evidence as a basis for departing from its guidelines (essentially doubling the time to be served from 5 to 10 years), we would have no choice but to reverse and remand because the evidence lacked indicia of reliability. This, however, as noted above, is not the case. Pilotto also claims that the Parole Commission acted arbitrarily in departing from the guidelines and increasing his sentence. He argues that the “boilerplate” description of the offense given by the Parole Commission in support of its decision was no different than that originally offered to support a “non-departure” sentence, and therefore is insufficient to support an upward departure. While the matter is not entirely clear, we are unable to find that the Commission abused its discretion in the matter. The Commission states that it considered the following factors, all of which were documented at trial, in electing an upward departure: (1) He played an instrumental role in developing the scheme. (2) The scheme involved a conspiracy which was organized, unusually extensive, and sophisticated. (3) His involvement in the conspiracy lasted for over seven years. (4) The conspiracy was of unusual magnitude in that it generated over $2 million in illegal payoffs. We agree that factors 2, 3 and 4 were indeed unique and were a proper basis for an upward departure. See Romano v. Baer, 805 F.2d 268, 270 (7th Cir.1986), Harris v. Martin, 792 F.2d 52, (3d Cir.1986), Hayward v. United States Parole Commission, 659 F.2d 857, 861 (1981). They went well beyond the boilerplate properly condemned in Garcia v. United States Board of Parole, 409 F.Supp. 1230, 1235 (N.D.Ill.1976). Thus, we find that the Parole Commission did not act arbitrarily. AFFIRMED. . Report and Recommendation of J. Earl Cudd, Magistrate, Fifth Division, District of Minnesota, June 17, 1987; adopted after review by District Judge James M. Rosenbaum, September 10, 1987. . See McMillan v. Pennsylvania, 477 U.S. 79, 86-88, 106 S.Ct. 2411, 2417-18, 91 L.Ed.2d 67, 77 (1986); U.S. v. Fatico, 603 F.2d 1053, 1056-57 (2d Cir.1979); Wixom v. United States, 585 F.2d 920, 921 (8th Cir.1978). Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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". Irving KAZANOFF, Individually and as Executor of the Estate of Shelley Kazanoff, Plaintiff-Appellant, v. UNITED STATES of America; Just Management Corporation; Daniel Rodriguez; William Deliu; Preferred 100-10 67th Road Condominium Corporation; 100-10 67th Road Condominium Corporation, Defendants-Appellees. No. 1437, Docket 91-6021. United States Court of Appeals, Second Circuit. Argued May 2, 1991. Decided Sept. 10, 1991. Jesse I. Levine, Garden City, N.Y. (Levine, Weinberg, Kaley & Pergament, of counsel), for plaintiff-appellant. Paul Weinstein, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Robert L. Begleiter, Robin L. Greenwald, M. Lawrence Noyer, Jr., Asst. U.S. Attys., of counsel), for defendant-appellant U.S. Stephen A. Weinstein, New York City, for defendants-appellees 100-10 67th Road Condominium Ass’n and Just Management Corp. Linda Gimble, New York City (Harold M. Foster, of counsel), for defendant-appellee Preferred 100-10 67th Road Condominium Corp. Before OAKES, Chief Judge, WINTER, Circuit Judge, and CONBOY, District Judge. The Honorable Kenneth Conboy of the District Court for the Southern District of New York, sitting by designation. CONBOY, District Judge: Irving Kazanoff, individually and as executor of the estate of Shelley Kazanoff, his deceased wife, appeals from an order of the District Court for the Eastern District of New York (Sifton, Judge), dated December 13, 1990, 753 F.Supp. 1056, granting summary judgment to defendants-appellees the United States of America (“the Government”), Just Management Corporation (“JMC”), 100-10 67th Road Condominium Association (“the Association”), and Preferred 100-10 67th Road Condominium Corporation (“Preferred”). For the reasons set forth below, the order of the district court is affirmed. BACKGROUND Plaintiff Irving Kazanoff and his wife, Shelley Kazanoff, rented apartment 2J in the building at 100-10 67th Road, Forest Hills, New York. The building was converted to a condominium in 1984. The Association is the owner of the building. Preferred is the owner of several apartments in the building, including the apartment rented by Irving and Shelley Kazanoff. JMC is the managing agent of the building at 100-10 67th Road, pursuant to a written contract with the Association. On July 21, 1987, Shelley Kazanoff was brutally and tragically assaulted and murdered in her apartment by William Deliu and Daniel Rodriguez, the son of her longtime acquaintance, Elsie Rodriguez. Rodriguez and Deliu had arrived at the building at approximately 9:30 a.m. and passed through the street door, which has no lock, into the building’s vestibule. They rang the intercom to the Kazanoffs’ apartment, but received no answer. Rodriguez then tried unsuccessfully to “jimmy” the door open using a plastic credit card. Rodriguez and Deliu stayed in the vestibule for approximately one hour, until they were able to enter through the locked lobby door as Charles Anderson, a United States Postal Service mail carrier, exited the building. Anderson has been a letter carrier for the United States Postal Service since approximately 1950. As part of his Postal Service training Anderson received instruction on motor safety and on the necessity of being courteous to the public. Anderson was not instructed by the Postal Service to screen persons entering buildings, nor was Anderson told to question persons while on his postal route to make sure that their presence in any particular place was lawful. The building at 100-10 67th Road was part of Anderson’s mail delivery route, and had been since approximately 1985. Anderson had a key to eight of the ten apartment buildings on his route, including the building at 100-10 67th Road. When Anderson took over his route in 1985, the key to the building was left on the key chain for the route by the letter carrier formerly servicing the building. The superintendent of the building later changed the building’s locks, and gave Anderson a new key. According to the superintendent, when he gave Anderson the new key, he told Anderson to be careful with the key and not to allow unauthorized persons to gain entry into the building. Anderson does not recall this conversation. On an average day, Anderson would arrive at the building at approximately 10:10 a.m. and leave at 10:25 a.m. Upon entering the building, he would first open the set of unlocked doors which lead into the vestibule. He would then use his key to unlock a second set of locked doors, leading into the lobby, where the mail boxes for the building’s tenants are located. It is not necessary to use a key to leave the building. Thus, upon leaving, Anderson would simply open and push his wagon through the inner doors, and then repeat the process to exit onto the street. On July 21, 1987, Anderson entered the building using his key and delivered the mail as usual. Upon leaving the building, he noticed in the vestibule what he believed to be a boy 15 or 16 years old and a man he believed to be 30 or 35. As Anderson was exiting through the locked doors, these two people, who turned out to be Deliu and Rodriguez, entered the lobby. Anderson thought that Rodriguez and Deliu may have been tenants of the building, or possibly construction workers. After entering, Rodriguez and Deliu walked up the stairs to the second floor and rang the bell at the Kazanoffs' apartment. Rodriguez identified himself as Elsie Rodriguez’s son (Shelley Kazanoff had known Elsie Rodriguez for at least twenty years) and told Mrs. Kazanoff that he needed to talk to her because his mother had died. Mrs. Kazanoff, dressed in her night gown, opened the door slightly, leaving the door lock chain secured, then locked the door and made two phone calls, one to Mrs. Rodriguez. Deliu and Rodriguez waited outside the Kazanoffs’ apartment in the hallway for at least ten minutes. It is not clear from the record whether they were out of sight of the peephole. Mrs. Kazanoff left the apartment dressed to go outside, perhaps unaware that Deliu and Rodriguez were waiting in the hallway. As she left the apartment and turned to lock the door, she was attacked by Rodriguez, who held her arms while Deliu grabbed the keys and unlocked the door. Rodriguez and Deliu then dragged Mrs. Kazanoff into her apartment, where Rodriguez brutally murdered her while Deliu ransacked and looted the apartment. At approximately 1:00 p.m., Irving Kaza-noff returned to the building, using his key to open the locked doors to enter the lobby. Both the lock on the interior set of doors leading into the lobby and the buzzer intercom system were functioning properly on that day. Kazanoff found his wife in the living room and called for an ambulance. Mrs. Kazanoff was declared dead at the scene by the New York City Medical Examiner. Kazanoff was appointed executor of his wife’s estate by the Surrogate of Queens County on March 21, 1988. Daniel Rodriguez was convicted, after a jury trial, of the murder of Shelley Kazanoff and the burglary of the Kazanoff’s apartment and is presently incarcerated. In a separate trial, William Deliu, who had earlier confessed to participating in the murder of Shelley Kazanoff and burglarizing the Ka-zanoffs’ apartment, was acquitted on all counts of the indictment. The only security devices at the building to prevent access by unauthorized persons were the single set of locked lobby doors and an intercom system. The entrance to the building consists of two metal frame entrance doors with glass panels which lead into a vestibule area. These exterior doors are kept unlocked. Beyond the exterior doors are two metal frame, self-closing, buzzer-activated glass doors which open into the lobby. These locked interior doors can be opened manually with a key or electronically through a lock and buzzer intercom system, located on the wall of the vestibule. Through this system, the interi- or door can be unlocked by someone in a tenant’s apartment using the electronic buzzer system. The building superintendent testified in a deposition that he had heard of several burglaries in the building, although he was not sure exactly when they occurred. From his testimony, it appears that only one of the burglaries, if any, occurred before July 21, 1987, the day Shelley Kaza-noff was murdered. Only one of the incidents was reported directly to the superintendent; he informed JMC of each incident. The superintendent also saw a homeless man in the basement of the building on several occasions in the weeks immediately preceding Mrs. Kazanoff’s murder. Anderson did not know of any criminal activity of any kind in the building prior to the murder of Mrs. Kazanoff. Moreover, except for this case, Mr. Kazanoff did not know of any assaults in the building during the twenty-six years he had lived there. In fact, there is no specific, first hand, or documentary evidence in the record of a single crime, except that in the present case, ever occurring at the building. Kazanoff charged the Government with negligently causing the death of his wife because Anderson, a Postal Service employee, permitted Rodriguez and Deliu to enter the building as he was leaving. Kazanoff also charged that defendants JMC, Preferred, and the Association were negligent in failing to provide necessary security for the tenants of the building. Judge Sifton granted these defendants’ motions for summary judgment, concluding that (1) no duty of care existed on the part of the Government to keep strangers from entering a lobby when its employee was leaving the building, and (2) that Kazanoff had failed to adduce facts from which a rational trier of fact could conclude that JMC, Preferred, or the Association acted unreasonably or failed to satisfy any duty owned to Kaza-noff or his decedent. Kazanoff appeals. DISCUSSION “ ‘Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.’” Maysonet v. KFC, Nat’l Management Co., 906 F.2d 929, 930 (2d Cir.1990) (quoting Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)). Under the law of the State of New York, to establish a cause of action in negligence, a plaintiff must show (1) the existence of a duty on defendant’s part as to the plaintiff; (2) a breach of that duty; and (3) injury suffered by the plaintiff as a result of that breach. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 535, 441 N.Y.S.2d 644, 648 (1981). We affirm because, as the district court held, the Government did not owe a duty to Mrs. Kazanoff, and the Association, Preferred, and JMC did not breach their duty to Mrs. Kazanoff. A. The Government The Government argues that its employee, Charles Anderson, the postal carrier, had no duty to prevent Rodriguez and Deliu from entering the building at 100-10 67th Road. “An action to recover for negligence does not lie unless there exists a duty on the part of the defendant and a corresponding right in the plaintiff.” Do-nohue v. Copiague Union Free School Dist., 64 A.D.2d 29, 32-33, 407 N.Y.S.2d 874, 877 (2d Dep’t 1978) (citing Palsgrafv. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)). “Duty is essentially a legal term by which we express our conclusion that there can be liability.... It tells us whether the risk to which one person exposes another is within the protection of the law.” De Angelis v. Lutheran Medical Ctr., 58 N.Y.2d 1053, 1055, 449 N.E.2d 406, 407, 462 N.Y.S.2d 626, 627 (1983). “The question of whether a member or group of society owes a duty of care to reasonably avoid injury to another is of course a question of law for the courts.” Purdy v. Public Adm’r, 72 N.Y.2d 1, 8, 526 N.E.2d 4, 7, 530 N.Y.S.2d 513, 516 (1988) (citations omitted). “A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.” D’Amico v. Christie, 71 N.Y.2d 76, 88, 518 N.E.2d 896, 901, 524 N.Y.S.2d 1, 6 (1987). New York courts have, however, imposed a duty to control the conduct of others where there is a special relationship; a relationship between defendant and a third person whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others.... Under the appropriate circumstances, the traditional master-servant relationship, the relationship between a parent and child, or the relationship between a common carrier and its passenger are examples of such relationships.... Purdy, 72 N.Y.2d at 8, 526 N.E.2d at 7, 530 N.Y.S.2d at 516; see also Pulka v. Edelman, 40 N.Y.2d 781, 783, 358 N.E.2d 1019, 1021, 390 N.Y.S.2d 393, 395 (1976). The relationship between Anderson, the mail carrier, and Mrs. Kazanoff, a tenant in the building, bears no resemblance to the special relationships traditionally recognized by New York courts. Nevertheless, Kazanoff urges this Court to recognize the existence of a duty of care on the part of Anderson, who had been given a key to the building, to afford Mrs. Kazanoff protection from the unauthorized entry of strangers into the building. In attempting to define the limits which circumscribe a legal duty, “not only logic and science, but policy play an important role.” De Angelis, 58 N.Y.2d at 1055, 449 N.E.2d at 407, 462 N.Y.S.2d at 627. Thus, [¿Judicial recognition of the existence of a duty of care is dependent upon principles of sound public policy and involves the consideration of numerous relevant factors which include, inter alia: moral considerations arising from the view of society towards the relationship of the parties ...; preventative considerations, which involve the ability of the defendant to adopt practical means of preventing injury, ... the degree of certainty that the alleged injuries were proximately caused by the defendant and the foreseeability of harm to the plaintiff; economic considerations, which include the ability of the defendant to respond in damages; and administrative considerations, which concern the ability of the courts to cope with a flood of new litigation. Donohue v. Copiague Union Free School District, 64 A.D.2d at 33, 407 N.Y.S.2d at 877 (citation omitted). “While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that ‘the legal consequences of wrongs [are limited] to a controllable degree.’ ” Waters v. New York City Housing Auth., 69 N.Y.2d 225, 229, 505 N.E.2d 922, 923-24, 513 N.Y.S.2d 356, 358 (1987) (quoting Tobin v. Grossman, 24 N.Y.2d 609, 619, 249 N.E.2d 419, 425, 301 N.Y.S.2d 554, 561 (1969)). “A line must be drawn between the competing policy considerations of providing a remedy to everyone who is injured and of extending exposure to tort liability almost without limit.” De Angelis, 58 N.Y.2d at 1055, 449 N.E.2d at 407, 462 N.Y.S.2d at 627. The district court correctly concluded that these considerations counsel against recognition of a duty of care on the part of the Postal Service to prevent unauthorized entries. First, “moral considerations” argue against the recognition of a special relationship here. The postal carrier is in no different position from any other person whose regular coming and going may justify giving him or her a key to avoid the necessity of having a tenant open the door each time they appear. Indeed, creating a duty on the part of the postal carrier to prevent entry into the building would expose every tenant and every other service person who accepts a key to liability for allowing unauthorized entries into the building, resulting in a “crushing exposure to liability.” Strauss v. Belle Realty Co., 65 N.Y.2d 399, 403, 482 N.E.2d 34, 36, 492 N.Y.S.2d 555, 557 (1985). The broad ramifications that would emanate from the implementation of a new duty in this case is an important factor “appropriately take[n] into account in fixing the orbit of duty that will necessarily control other cases as well as this one.” D’Amico v. Christie, 71 N.Y.2d at 89, 518 N.E.2d at 902, 524 N.Y.S.2d at 7. Second, the difficulty of defining the scope of a duty to prevent unauthorized entry also weighs against recognition of such a duty. People do not generally shut doors in others’ faces, and, in some instances, such behavior puts the person required to shut the door in another’s face at risk of injury. To what lengths must a postal carrier go to prevent unauthorized entry? If a polite “I am sorry, you cannot enter here” does not deter intruders, must the postal carrier use physical force to prevent unauthorized entry? Is he or she required to put himself or herself in physical danger to safeguard the premises? Would the carrier be required to screen out all entrants, or only persons who obviously look threatening? As to “preventative considerations”, the violent crime which took place here was, from the postman’s perspective at least, an unforeseeable, intervening act which broke the chain of causation between the postman’s actions and Mrs. Kazanoff’s injury. Moreover, it is by no means certain that having postal carriers block entry into buildings would, as Kazanoff suggests, deter would-be assailants or robbers from entering buildings. Training letter carriers to screen entrants to buildings — a daunting administrative task — addresses only one of the many ways in which law breakers enter buildings to do injury. When the orbit of the potential liability is recognized and considered together with the reality that little or no public safety increase can be expected from such a rule, there is no policy basis upon which to ground a change in the common law. We conclude that no duty exists on the part of the Postal Service to keep strangers from entering a building while a postal carrier leaves it. B. Owners and Manager of the Building Kazanoff charges JMC, the Association, and Preferred, the manager and owners of the building, with negligently failing to provide adequate security for the tenants in the building. We agree with Judge Sifton that Kazanoff failed as a matter of law to establish negligence on the part of these defendants, as no rational trier of fact could conclude that any of these defendants acted unreasonably or failed to satisfy any duty owed to the plaintiff’s decedent. The common-law duty of a landlord is to maintain his property “in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk.” Basso v. Miller, 40 N.Y.2d 233, 241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976) (citing Smith v. Arbaugh’s Restaurant, 469 F.2d 97 (D.C.Cir.1972)), cert. denied, 412 U.S. 939, 93 S.Ct. 2774, 37 L.Ed.2d 399 (1973). “The law does not require the defendants to provide the optimal or most advanced security system available, but only reasonable security measures_ To hold otherwise would cast the defendants in the role of insurers of the safety of the premises.” Tarter v. Schildkraut, 151 A.D.2d 414, 415, 542 N.Y.S.2d 626, 627 (1st Dep’t 1989) (citation omitted). Defendants argue that they fulfilled their duty of care by complying with N.Y. Multiple Dwelling Law § 50-a (McKinney 1974), which requires a landlord or owner to provide a locked door and an intercom system to prevent unauthorized public access to a multiple dwelling. It is not disputed that defendants complied with these requirements, and that the locks on the doors leading into the lobby and the intercom system were working on the day Mrs. Kazanoff was murdered. Indeed, the locked door prevented Rodriguez and Deliu from gaining access to the building, even when Rodriguez tried to “jimmy” the door open with a credit card. These defendants were only able to gain access to the building when the postal carrier opened the door to leave the building. Nevertheless, Kazanoff contends that mere compliance with the statutory minimum in Section 50-a was not adequate in light of alleged recent criminal activity in the building — criminal activity which as-sertedly made the unauthorized entry by Rodriguez and Deliu and the murder of Shelley Kazanoff foreseeable to defendants Preferred, the Association, and JMC. “Under New York law a [landlord] is not liable for the intervening criminal acts of another unless such acts were reasonably foreseeable.” Maysonet v. KFC, Nat’l Management Co., 906 F.2d 929, 930-31 (2d Cir.1990) (citing Danielenko v. Kinney Rent A Car, Inc., 57 N.Y.2d 198, 204, 441 N.E.2d 1073, 1075, 455 N.Y.S.2d 555, 557 (1982); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 407 N.E.2d 451, 457, 429 N.Y.S.2d 606, 613 (1980)). “No duty of care arises ‘unless it is shown that [defendant] either knows or has reason to know from past experience “that there is a likelihood of conduct on the part of third persons ... which is likely to endanger the safety” ’ ” of those on the property. Maysonet, 906 F.2d at 931 (quoting Nallan, 50 N.Y.2d at 519, 407 N.E.2d at 457, 429 N.Y.S.2d at 613 (quoting Restatement (Second) of Torts § 344 comment f)). Thus, “a history of criminal activities in a building can give rise to a duty on the part of the building’s owner to take reasonable steps to minimize the danger to persons visiting it." Maysonet, 906 F.2d at 931 (citing Nallan, 50 N.Y.2d at 519, 407 N.E.2d at 458, 429 N.Y.S.2d at 613). For example, in Nallan, the plaintiff was shot by an unknown assailant as he was signing a guest register in the unattended lobby of the building. Apparently the attendant had not locked the doors of defendants’ Manhattan office building when he left the lobby to attend to cleaning chores. There were 107 reported crimes in the building in the 21-month period immediately preceding the shooting, including at least 10 crimes against persons. Id. at 519-20, 407 N.E.2d at 458, 429 N.Y.S.2d at 613-14. The court held that the plaintiff had stated a prima facie case in negligence. Id. Similarly, in Miller v. New York, 62 N.Y.2d 506, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984), liability was imposed upon the State in its proprietary capacity as a landlord for failing to maintain locked doors in a state-operated college dormitory in which a resident student had been raped. There had been previous reports of nonresidents loitering in the dormitory, as well as reports from other campus dormitories of an armed robbery, burglaries, trespass and another rape. “In sharp contrast [to these examples], the record in the case at bar contains little evidence of criminal activity prior to the date of the [assault].” Iannelli v. Powers, 114 A.D.2d 157, 162, 498 N.Y.S.2d 377, 381 (2d Dep’t 1986). Citing the testimony of the superintendent, Kazanoff asserts that there were three burglaries in the building before the time of the murder. As we have indicated, however, the superintendent was not certain when the burglaries occurred. In fact, it appears from his testimony that only one of the burglaries, if any, occurred before July 1987, when Mrs. Kazanoff was killed. Moreover, Fed.R.Civ.P. 56(e) requires affidavits based on personal knowledge. Here, the superintendent had no firsthand knowledge of any of the incidents. Thus, Judge Sifton correctly concluded that Kazanoff had not made an adequate showing of prior criminal activity in the building that would have made the attack on Mrs. Kazanoff foreseeable to Preferred, the Association, and JMC and alerted them to a duty to adopt greater security measures. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relations; it is risk to another or to others within the range of apprehension” that delimits the duty’s scope. Palsgraf, 248 N.Y. at 344, 162 N.E. at 100. Because Kazanoff did not establish that defendants had specific warning that an incident such as the assault on Mrs. Kazanoff would occur, the murder of Mrs. Kazanoff was not a reasonably foreseeable act. Thus, the “intervening criminal act” of Rodriguez and Deliu constitutes a superseding cause of the injury to Mrs. Kazanoff. See Maysonet, 906 F.2d at 930. We recognize that what constitutes reasonable care under the circumstances is ordinarily a question for the jury. This is not to say, however, that in every case involving a landowner’s liability in negligence the question whether reasonable care was exercised must be determined by the jury.... Only in those cases where there arises a real question as to the landowner’s negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further. Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 332, 424 N.E.2d 531, 534, 441 N.Y.S.2d 644, 647 (1981) (citations omitted). “In light of the absence of prior criminal incidents or assaults on the premises of the [building] in this case, the district court properly concluded that the history of the premises could not give rise to a duty of care to protect [tenants] from criminal attacks,” Maysonet, 906 F.2d at 931 (citations omitted), by implementing greater security measures. CONCLUSION The order of the district court granting summary judgment to the defendants and dismissing the complaint is affirmed in all respects. . The 100-10 67th Road Condominium Association was sued incorrectly as the “100-10 67th Road Condominium Corporation”. . Defendants William Deliu and Daniel Rodriguez did not move for summary judgment. In his December 13, 1990 order, Judge Sifton directed Kazanoff to inform the Court within twenty days of the date of the order whether he intended to proceed against Deliu and Rodriguez. Kazanoff did not respond, and the district court accordingly entered judgment in favor of all defendants on January 15, 1991. Ka-zanoff has not appealed from the judgment in favor of Deliu and Rodriguez. . New York law applies to the claim against the Government, which is brought pursuant to the Federal Tort Claims Act, see 28 U.S.C. §§ 1346(b), 2674 (1988), and to the common law claims against JMC, Association and Preferred, which are based on diversity jurisdiction. . Kazanoff argues that the district court’s entry of summary judgment was particularly inappropriate in light of Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), under which a wrongful death plaintiff in New York “is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.” Id. at 80, 80 N.E.2d at 745. We note at the outset that, although this court has recognized the Noseworthy rule in negligence actions governed by New York law, see Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 208 (2d Cir.1984); Jones v. United States, 399 F.2d 936, 940 (2d Cir.1968), it is not clear whether a state rule on the sufficiency of the evidence such as the Noseworthy doctrine governs in a federal action. See Mehra v. Bentz, 529 F.2d 1137, 1139 n. 2a (2d Cir.1975) (assuming, without deciding the issue, that New York law governs the question of sufficiency of evidence); Eldred v. Town of Barton, 505 F.2d 186, 187 n. 2 (2d Cir.1974) (whether a federal rule rather than the state rule on sufficiency of evidence governs is "debatable and apparently undecided in this Circuit") (citing Park v. Village of Waverly, 457 F.2d 1139, 1140 n. 1 (2d Cir.1972); Simblest v. Maynard, 427 F.2d 1, 4-7 (2d Cir.1970); Evans v. S.J. Groves & Sons Co., 315 F.2d 335, 342 n. 2 (2d Cir.1963)). In any event, Noseworthy is inapplicable to this case. The purpose of the Noseworthy rule "is to circumvent the situation where a tort-feasor who inflicts personal injury [would] be insulated from liability simply because the injuries produced are fatal ... and the decedent, who would have been in the best position to describe the event from plaintiffs point of view, [is] unavailable to do so.” Holiday v. Huntington Hosp., 164 A.D.2d 424, 427, 563 N.Y.S.2d 444, 446 (2d Dep't 1990) (citations and internal quotations omitted). Here, several eyewitnesses to the tragic events leading up to Shelley Kaza-noffs death, including Deliu, Rodriguez, and Anderson, have been deposed and are available to testify. More important, the issues here— relating to the actions of the postman and the security system in the building—are not ones as to which Mrs. Kazanoff was a witness. Thus, the rationale for the Noseworthy rule is absent. Nor would application of Noseworthy "actually effect a diminution of the standard or quantum of proof as such.” Holiday, 563 N.Y.S.2d at 446. Rather, “[t]he standard of proof of continues to be proof by a preponderance of the credible evidence. The doctrine's sphere of operation is in the weight to be assigned to circumstantial evidence concerning disputed facts because the more direct and proper source of this evidence no longer exists.” Id. Thus, contrary to Kazanoffs assertions, application of Noseworthy would not diminish his burden of proof. . Because of our conclusion that defendants were not negligent, we need not address defendants’ argument that no derivative action can be brought on behalf of a surviving spouse for loss of consortium, maintenance, contribution, care, society, services and companionship due to the wrongful death of his spouse. 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_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 HOFELLER v. FEDERAL TRADE COMMISSION. No. 5547. Circuit Court of Appeals, Seventh Circuit. March 25, 1936. William Friedman and Lloyd C. Whitman, both of Chicago, Til., for petitioner. W. T. Kelley, Chief Counsel, Federal Trade Commission, Martin A. Morrison, Asst. Chief Counsel, and Henry C. Lank and James W. Nichol, Sp. Attys., all of Washington, D. C., for respondents. Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge. This appeal is from an order of the Federal Trade Commission directing petitioner to cease and desist unfair trade practices, viz., the selling in interstate commerce to concessionaires, of candy so packed as to be a lottery or gift enterprise. Because of the importance of the findings of the Federal Trade Commission, we have set forth the findings of said commission, deleting the immaterial portions. Findings as to the Facts. “ * * * Hofeller, is an individual doing business as Bob Hofeller Candy Company * * * in * * * Chicago * * . He * * has been, engaged in the sale and distribution of packaged candy to concessionaires * * * burlesque theatres, traveling shows, tent shows, medicine shows, circuses and carnivals. Such purchasers are located in the various states * * * and respondent eauses said candy packages * * * to be shipped * * * to the purchaser * * * in (other) states * * * respondent has been engaged in interstate commerce and is * * * in active and substantial competition with others * * * engaged in the sale * * * in interstate commerce, of candy * * * “ * * * Respondent does not manufacture the candy * * * but buys certain kind of caramel * * * and chocolate covered cream candy * * . He places this candy in boxes bearing various brand names, together with prizes * * of * * * merchandise or coupons * * * (for) merchandise. “These assortments vary according to * * * direction of * * * customers, but they all make use of the same chance feature, and a description of one * * * assortment is descriptive of the principle involved in all. One such assortment * * * (of) respondent * * * has the brand name ‘Oriental Love Drops.’ This assortment consists of a number of boxes, each containing * * * five pieces of caramel candy and another article of merchandise as a prize. A list of jjrizes in said boxes includes: stick-pins, paper watches, transfer pictures, snap games, moving picture books, water flowers, eyeglasses, tops, strip pictures, lamps, wall decorations, blankets, stockings, bed spreads and pillows. * * * (the prizes) are concealed in said boxes and the nature of the prize * * * can not be ascertained until the box has been purchased and opened. The retail value of the prizes ranges from 1$ to $3.00. “ * * ■ The articles of prize merchandise are thus distributed wholly by lot or chance. * * “ * * * The packages of candy containing * * * prize merchandise are * * * variously described in the candy trade as: ‘Prize packages,’ * * . Candy sold without any prize or without any lot or chance feature is referred to * * as ‘Straight’ Candy. “ * * • The majority of the packages of candy * * * retail at 10$ each, * * * a few * * * at 5$, a few at 16$ and p few at 25$. The candy contained m said packages is not the equivalent in value of ‘straight’ cwndy sold at corresponding prices. “•* v * Numerous concessionaires * * * purchase the assortments * * * from respondent or * * * from others distributing similar types * * * and such concessionaires * * * offer the same for resale to * * * patrons of such * * * places of amusement * * . “ * * The packages are * * * packed in such manner that they can be offered for sale by respondent’s customers to the consuming public * * * without alteration. * * * The testimony clearly indicates that the packages * * * can not be resold to the public by respondent’s customers, except as a lottery or gaming device * * . “ * ' * (Respondent) packs and assembles such candy in the way and manner described so that it shall be resold to the public by lot or chance. “ * * * Respondent’s merchandise is sold as ‘Prize Candies’ in burlesque theatres, traveling shows, tent shows, medicine shows, circuses and carnivals. * * * (where) * * * with the exception of the burlesque theatres, no other candy is ordinarily offered for sale. In burlesque theatres some ‘straight’ candies are occasionally offered for sale and sold. The evidence discloses and the Commission finds that in theatres other than burlesque theatres candy bars and small packages of candy are quite often offered for sale and sold. Candy manufacturers and candy jobbers testified and the Commission finds that, if this ‘prize’ candy was not offered for sale, ‘straight’ candy in bars or small packages could be sold in sxtbstantial quantities in burlesque theatres, traveling shows, etc. * * * and carnivals, the sale of said ‘novelty package’ candy prevents the sale of ‘straight’ candy and thus eliminates competition of manufacturers and jobbers selling such ‘straight’ candy. The Commission finds that such manufacturers and jobbers of ‘straight’ candy are potential competitors of the respondent insofar as the sale of the ‘straight’ candy in the aforementioned places of amusement * * . “ * * The sale and distribution * * * by the sales plan described herein is the sale * * * of said packages by lot or ebance and constitutes a lottery or gaming device. “ * * * Competitors and potential competitors of respondent * * * testified and the Commission finds as a fact that many competitors and potential competitors regard such method of sale and distribution as morally bad and encouraging gambling, and particularly where these packages are offered to audiences made up in part of children; as injurious to the candy industry, because it results in the merchandising of a chance or lottery instead of candy; and as providing the vendors thereof with a means of violating the laws of the several states. Because of these reasons, some competitors and potential competitors of respondent refuse to sell candy so packed and assembled that it can be resold to the public by lot or chance. Other competitors are opposed to such method of sale for the reasons just above stated and testified, and the Commission finds as a fact, that they are nevertheless compelled to adopt such methods in order to meet the competition of respondent and others indulging in like methods, in order to prevent the loss of their business or a substantial part thereof. The competitors and potential competitors of respondent who refuse to sell their merchandise by such methods are thereby put to a disadvantage in competing. Certain concessionaires, operators, * * * who find that they can dispose of more candy by using the method of sale as described, buy respondent’s products and the products of others employing the same methods of sale and thereby trade is diverted to respondent and others using similar methods from respondent’s competitors and potential competitors. Said competitors and potential competitors can compete on even terms only by giving the same or similar devices to their customers. This they are unwilling to do, and their sales of ‘straight goods’ candy is injuriously affected. “The use of the method by respondent as described herein in the sale and distribution of his candy is prejudicial and injurious to the public and to respondent’s competitors and potential competitors, and has resulted in the diversion of trade to respondent from his said competitors and potential competitors, and thus is a restraint upon, and a detriment to, the freedom of fair and legitimate competition, in the candy industry. “ * * * The sale of ‘straight goods’ candy has been injuriously affected by the sale of ‘novelty prize’ candy, and this effect is principally due to the gambling or lottery feature indicated with the ‘novelty prize’ candy. “ * * * Respondent began the sale * * * of the (prize) assortments * * * in 1932, and has continuously * * * (sold them). “ * * * The exact amount of respondent’s annual volume of business is not shown, but the respondent testified, and the Commission finds, that the volume of his 6xisiness involving the sale and distribution of candy by lot or chance is substantial. “ * * * The sale and distribution of candy by lot or chance is against the public policy of the United States and of many of the states thereof, and some of the said states have laws making the operation of lotteries and gambling devices penal offences.” EVANS, Circuit Judge. Briefly stated the facts are: Petitioner sells candy in packages which retail for five to twenty-five cents and contain various prizes ranging in value from one cent to three dollars. The consumer in purchasing a package does not know which prize he will receive nor its value. The packages are generally sold in burlesque theatres, at carnivals, and like places, where “straight” candy is not generally sold, but the Commission found that the potential competition -of “straight” candy was eliminated by the sale of this prize candy. It also held that the sale of prize candy injuriously affected the business of the straight candy dealers and constituted unfair competition, and violated section 5 of the Federal Trade Commission Act (15 U.S.C.A. § 45). Petitioner argues that (1) the complaint is insufficient to show unfair methods of competition upon which a valid cease and desist order might be predicated, (2). there was no tendency to suppress substantial competition, exploit or deceive the public (most all of the consumers not being children), and (3) the Federal Trade Commission Act is unconstitutional if it be construed to cover practices not deemed unfair at the time of its adoption. The instant case is controlled by Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814. Petitioner agrees that his appeal turns upon the applicability or non-applicability of the Keppel Case. He differentiates the Keppel Case on the ground that sales to children were there the determining factor, but were here absent. It, too, was an unfair competition case involving the sale of prize candy, the sale being most generally to children. This court followed the Keppel Case, in a recent opinion, Walter H. Johnson Candy Co. v. Federal Trade Commission, 78 F.(2d) 717, where we upheld a cease and desist order dealing with the sale of a prize lottery scheme in connection with the sale of candy, mostly to children. It cannot be denied that the persuasive argument in the Keppel Case was based on the fact that the consumers of the. candy were, in the main, children. We are not satisfied, however, that the conclusion there reached is not here applicable. It will be noted that the Supreme Court emphasized the factor of lottery and chance in determining what constituted an unfair method of competition, and it spoke in general terms, at times without limitation to instances where the consumers were children. The practice there disclosed was deemed offensive to some manufacturers who refrained from adopting it and therefore suffered loss. In the Keppel Case there are many facts indicative of unfair trade methods .there pointed out by the court which are present in the instant case. Among such similarities are: Inferior candy sold in the prize packages; a relatively negligible amount of the candy was given in return for the price; substantial diversion of trade from actual or potential competitors; .sale of the candy with the lottery feature in violation of local law; and competing manufacturers damaged by refraining from such practices. It is quite impossible to escape the conclusion that where a competitive method employs a device whereby the amount of the return is made to depend upon chance, such method is condemned as being contrary to public policy. Two matters in this field of law are well settled: (a) What constitutes unfair methods of competition is a question of law for the court. Federal Trade Commission v. Balme (C.C.A.) 23 F.(2d) 615; Federal Trade Commission v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191; James S. Kirk & Co. v. Federal Trade Commission (C.C.A.) 59 F.(2d) 179; Federal Trade Commission v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993. (b) The findings of the Federal Trade Commission are to be accepted if supported by evidence. Armand Co. v. Federal Trade Commission (C.C.A.) 78 F. (2d) 707; E. Griffiths Hughes, Inc., v. Federal Trade Commission (C.C.A.) 77 F.(2d) 886; Federal Trade Commission v. Curtis Pub. Co., 260 U.S. 568, 43 S.Ct. 210, 67 L.Ed. 408. The statute provides: “ * * * The findings of the commission as to facts, if supported by testimony, shall be conclusive.” (15 U.S.C.A. § 45). • The issue is therefore narrowed to whether there was evidence to support the findings of the Commission and, if so, whether the facts found were such as to fall within the purview of the legal conception of “unfair methods of competition.” As the Supreme Court has interpreted that phrase, the dominant factor seems to be the element of competition, actual or potential, and the specificity an’d substantiality of the effect of such unfair methods upon such competition. Our study of the record has caused us to reach this conclusion. Although we do not find the evidence overwhelmingly establishes either the presence of substantial existing competition, or of potential competition between the sale of straight candy and the novelty candy here under scrutipy, there is sufficient evidence to sustain the findings of the Commission. The testimony tended to disclose that in the field of burlesque theatres, free open air shows, carnivals, show boats, and the like, the sale of prize or novelty candies constituted a very substantial, if not a major, part of the receipts from candy sales and that little other candy was sold in such places, except bar candies. There was testimony which tended to show that the distributors of- straight candy were deprived of possible business. They either refrained from entering that sort of business because .of moral compunctions, or they were unable to compete with the prize candy business because of the appeal of the lottery features. It was also shown that the candy in the prize package was much inferior in quality to straight candy; that the quantity given was negligible in view of price charged; and that the prizes often varied greatly in value. The profit on these packages exceeds 50%. We are of the opinion that the present investigation was begun in the interest of the public for the protection, encouragement, and maintenance of competition and for the elimination of unfair trade methods involving the use of lottery and methods generally held by the community to be contrary to public policy. There was evidence to the effect that 60% to 70% of the receipts from the free shows was from the sale of this novelty candy; 35% to 50% of show boat receipts resulted therefrom; and 30% to 35% of tent show receipts was from novelty packages. 95% of petitioner’s business was in the sale of prize packages. Although complete evidence was lacking, it was sufficient to show that the prize candy industry is a substantial industry. The order is affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_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". Cathy A. WILLIAMS, Appellee, v. FORD MOTOR CREDIT COMPANY, Appellant, v. S & S RECOVERY, INC. Cathy A. WILLIAMS, Ford Motor Credit Company, Appellant, v. S & S RECOVERY, INC., Appellee. Nos. 79-1911, 79-1947. United States Court of Appeals, Eighth Circuit. Submitted June 12, 1980. Decided Aug. 12, 1980. W. R. Nixon, Jr., Little Rock, Ark., for appellant, Ford Motor Credit. Fines F. Batchelor, Jr., Van Burén, Ark., argued, for appellee, Cathy Williams. Bradley D. Jesson, Hardin, Jesson & Dawson, Fort Smith, Ark., on brief, for S & 5 Recovery. Before LAY, Chief Judge, STEPHENSON, Circuit Judge, and HANSON, Senior District Judge. William C. Hanson, Senior District Judge, Northern and Southern Districts of Iowa, sitting by designation. LAY, Chief Judge. Cathy A. Williams filed suit in state court against Ford Motor Credit Company (FMCC) alleging that it wrongfully repossessed an automobile in her possession which had been financed through FMCC. FMCC removed the case to federal court, answered and filed a third-party complaint against S & S Recovery, Inc. (S & S). The third-party complaint alleged that the seizure of Williams’ vehicle was made solely by S & S and that the manner and method used in the repossession was controlled by S 6 S. A trial was conducted and at the conclusion of all the evidence, S & S’s motion for directed verdict was granted. Plaintiff’s case against FMCC was allowed to go to the jury; a verdict of $5,000 was returned in favor of plaintiff. Thereafter, FMCC made a motion for judgment notwithstanding the verdict. In response, plaintiff suggested that the court deny defendant’s motion or, if the court decided that the verdict should not be allowed to stand, that an order be entered for a voluntary nonsuit without prejudice to refile in state court. The court ordered a voluntary nonsuit without prejudice to refile and ordered nunc pro tunc that a verdict be directed in favor of S & S and against FMCC. FMCC appeals from the district court’s orders dismissing plaintiff’s complaint without prejudice and directing a verdict in favor of S & S. Where no responsive pleading is filed, Fed.R.Civ.P. 41(a)(1) makes clear that a party may dismiss his action without order of the court. However, Fed.R.Civ.P. 41(a)(2) reads in part: By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. It has long been acknowledged that the rule gives the district court equitable discretion to dismiss an action upon plaintiff’s request. Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). As stated in International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946): At most, the discretion vested in the court is a judicial and not an arbitrary one and does not warrant a disregard of well settled principles of procedure. Id. at 780. Here the action had been pending for over eighteen months. Discovery had been conducted on both sides, extensive pretrial preparation and proceedings had been undertaken and a two and one-half day jury trial had been held. A jury deliberated and rendered the verdict. Briefing had been completed on the motion for judgment notwithstanding the verdict. The only possible basis for the dismissal without prejudice appears to be that plaintiff feared the trial court might grant the motion. Plaintiff’s motion fails to disclose the reason for seeking the dismissal without prejudice. Plaintiff did not indicate that new evidence might be shown. Even if there were such evidence, there is no indication that plaintiff could not have presented it during trial. This case is in a somewhat different posture than the International Shoe Co. case but the same reasoning applies here. There the defendant had moved for a directed verdict and the plaintiff then moved for a dismissal without prejudice. Here plaintiff has the verdict, but was obviously apprehensive of the court’s ruling on the judgment notwithstanding the verdict. In International Shoe Co. this court reasoned: There seems to have been ample opportunity to prepare the case for trial and four and a half days had been consumed in taking testimony at the time plaintiff rested his case. Defendant’s motion for a directed verdict had been fully presented on its merits and submitted to the court, and the court had announced its intention to sustain the motion and direct a verdict for defendant. As the result of the proceeding the court had reached a decision on the merits and all that remained to be done was the accepting of a verdict and the entry of judgment thereon. To all intents and purposes the defendant had secured a decision that plaintiff’s action was without merit and this decision had been announced. The discontinuance of the case in such circumstances involved more for the defendant than the mere annoyance and expense of a second litigation upon the same subject matter. It deprived it of the benefit of a decision in its favor. Id. at 780. We find the defendant has sustained substantial prejudice by the dismissal. It will be subjected to more litigation expense and might be prejudiced on its third-party claim. If the trial court errs in granting judgment notwithstanding the verdict, plaintiff may still appeal to this court. Under the circumstances we feel the court abused its discretion in granting the motion to dismiss without prejudice at such a late time in the proceedings. Ferguson v. Eakle, 492 F.2d 26 (3rd Cir. 1974); Noonan v. Cunara Steamship Co., 375 F.2d 69 (2d Cir. 1967); International Shoe Co. v. Cool, 154 F.2d 778 (8th Cir. 1946); see Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975); United States v. Gunc, 435 F.2d 465 (8th Cir. 1970); Johnston v. Cartwright, 355 F.2d 32 (8th Cir. 1966). Cf. Western Union Telegraph Co. v. Dismang, 106 F.2d 362 (10th Cir. 1939). See generally 9 Wright & Miller, Federal Practice & Procedure §§ 2364, 2376 (1971); 5 Moore’s Federal Practice ¶¶ 41.05[1], 41.05[3] (2d ed. 1979). As we indicated earlier, defendant impleaded S & S for indemnification. The trial court granted a directed verdict in favor of S & S at the close of the evidence. There is no need to review at this time the merits of the indemnity claim brought by defendant. Fed.R.Civ.P. 14 permits impleader of one who is or may be liable to the defendant. Federal impleader is designed to decide contingent liability as well as primary liability and the third-party claim can accelerate determination of the liability, if any, between the third-party plaintiff and the third-party defendant. As a prerequisite to that contingency, a court may grant a conditional judgment against the third-party defendant that does not become enforceable until the third-party plaintiff is otherwise determined to be entitled to judgment or payment of the judgment. See Travelers Insurance Co. v. Busy Electric Co., 294 F.2d 139, 145 (5th Cir. 1961); Wright & Miller Federal Practice & Procedure § 1451 (1971). In the present case the trial court ruled in favor of the third-party defendant before entering judgment on the original complaint. Under the circumstances, because the issue of S & S’s liability over to FMCC may be rendered moot by the ultimate disposition of FMCC’s motion for judgment against Williams notwithstanding the verdict, we decline to rule at this time on FMCC’s appeal from the judgment in favor of S & S. Instead, we dismiss FMCC’s appeal from that judgment without prejudice, and hold that the ruling of the trial court in favor of S & S should be appealed (if necessary) after judgment on the merits has been entered in the main suit. The order of the district court dismissing plaintiff’s action without prejudice is vacated; the case is remanded and the court is directed to rule on defendant’s motion for judgment notwithstanding the verdict; the appeal by defendant on its third-party complaint is ordered dismissed without prejudice. In the event the court overrules defendant’s motion for judgment notwithstanding the verdict, defendant may move within ten days for reconsideration of the court’s ruling on its third-party complaint; upon such ruling the court should simultaneously enter judgment on the verdict and on the third-party complaint for convenience of appeal. It is further ordered that each party shall pay its own costs on this appeal. . Of course, the court may sever the third-party claim for separate trial and reserve ruling on it until trial on the main cause is complete. If the third-party claim is not severed the judgment on the main case is not final for purposes of review until the third-party claim is ruled upon or unless the district court files a Fed.R. Civ.P. 54(b) order. See 6 Moore’s Federal Practice ¶ 54.36 (2d ed. 1976). 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_respond2_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Jules LUSARDI, Walter N. Hill, James Marr, Jr., John F. Weiss, Arthur Brickman, Martin J. Cocca, Carl B. Heisler, Raymond C. Loyer, Donald P. Miller, Robert C. Patterson, Anthony T. Salvatore, Eldon Sheldon, Michael Sylvestri, individually and on behalf of all other persons similarly situated, Petitioners at No. 87-5901, v. Honorable Alfred J. LECHNER, Jr., United States District Judge, Nominal Respondent, Xerox Corporation, a New York corporation, Respondent. Jules LUSARDI, Walter N. Hill, James Marr, Jr., John F. Weiss, Arthur Brickman, Martin J. Cocca, Carl B. Heisler, Raymond C. Loyer, Donald P. Miller, Robert C. Patterson, Anthony T. Salvatore, Eldon Sheldon, Michael Sylvestri, individually and on behalf of all other persons similarly situated, Appellants at No. 87-5902, v. XEROX CORPORATION, a New York corporation, Appellee. Nos. 87-5901, 87-5902. United States Court of Appeals, Third Circuit. Argued April 15, 1988. Decided Aug. 31, 1988. Robert H. Jaffe (argued), Jaffe & Schlesinger, P.A., Springfield, N.J., John F. Gea-ney, Steven I. Adler, Cole, Geaney, Yamner & Byrne, Paterson, N.J., Robert L. Deitz (argued), Hilary Harp, Perkins, Coie, Myer Feldman, Alan S. Weitz, Ginsburg, Feld-man & Bress, Washington, D.C., for petitioners/ appellants. Alfred H. Hoddinott, Jr., Xerox Corp., Stamford, Conn., Robert J. Del Tufo (argued), Hannoch, Weisman, P.C., Roseland, N.J., Fred A. Freund, Kaye, Scholer, Fier-man, Hays & Handler, New York City, for respondent/appellee. Before HUTCHINSON, SCIRICA and ROSENN, Circuit Judges. OPINION OF THE COURT HUTCHINSON, Circuit Judge. Jules Lusardi and the other named plaintiffs (Lusardi) in this age discrimination action seek to appeal an order of the United States District Court for the District of New Jersey revoking that court’s prior conditional certification of an opt-in class. Recognizing that an action granting or denying class certification is interlocutory and generally not appealable, they ask, in the alternative, that we exercise our jurisdiction under the All Writs Act, 28 U.S.C.A. § 1651 (West 1966), and issue a mandamus to the district court directing it to continue the class certification. On the merits, Lu-sardi asserts a number of errors by the district court in revoking certification, none of which we can reach unless we either have appellate jurisdiction or decide that a writ of mandamus is warranted. For the reasons that follow, we hold that we lack appellate jurisdiction. We also hold that the action of the district court, with one exception, does not present us with a clear error of law and the absence of any alternative remedy, both of which conditions must be met before we have discretion to grant mandamus. Therefore, we will dismiss the appeal for lack of jurisdiction. We will, however, grant mandamus for the limited purpose of directing the district court to vacate its holding on the necessity of timely individual administrative filings of charges of age discrimination by the persons it has held do not constitute a proper opt-in class; to reconsider its order decertifying the class for disparate defenses without relying on the presence, or absence, of individual administrative charges or their timing; and, if the court nevertheless concludes class decertification is required, to modify the form of notice it directed be sent to the members of the putative opt-in class by eliminating any implication that they may be barred from pursuing remedies for asserted age discrimination because they failed individually to file timely administrative claims with the Equal Employment Opportunity Commission (EEOC). I. Jules Lusardi and three other former employees filed a class action against the Xerox Corporation (Xerox) on March 8, 1983, pursuant to § 7 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-634 (West 1985 & Supp.1988). The second amended class action complaint, filed October 6, 1983, alleges that Xerox has a nationwide policy and practice of using age as a determinate factor in carrying out salaried workforce reductions. Lusardi sought class certification, injunctions restraining Xerox from continuing to implement age-based corporate policies, an order directing it to implement an affirmative action program, reinstatement of plaintiffs and opt-in members of the putative class to positions comparable to those they held with Xerox before the alleged discriminatory pattern affected them individually, backpay, other pecuniary damages and costs. The class was conditionally certified by the district court on January 30, 1984 and included: All salaried employees in the forty (40)-seventy (70) age group who in the period May 1, 1980 through March 31, 1983 have been terminated or required to retire from employment at an age less than seventy or have been denied equal employment opportunities for promotion at any unit, division or American subsidiary of Xerox Corporation and who contend that such termination, retirement or denial of promotion was caused by age discrimination policies or practices of Xerox Corporation. App. at 180. The conditional certification was made without prejudice to the parties’ rights to move for decertification or enlargement or modification of the class or the order. On February 1, 1984, Xerox appealed the district court’s order and petitioned for a writ of mandamus, arguing that the district court erred in (1) ordering Xerox to provide to the court the names and addresses of all potential class members and authorizing Lusardi to send notice to such potential class members and (2) conditionally certifying an across-the-board opt-in class. This court denied Xerox’s petition for mandamus by order dated February 9,1984 and in a published opinion dismissed Xerox’s appeal for lack of jurisdiction. See Lusardi v. Xerox Corp., 747 F.2d 174 (3d Cir.1984) (hereinafter Lusardi I). After concluding that the district court’s order was appealable only if it fell within the “collateral order” exception of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we analyzed each issue separately in light of Cohen’s three requirements that: (1) the order conclusively determine the disputed question, (2) it resolve an important issue completely separate from the merits of the action, and (3) it be effectively unreviewable on appeal from final judgment. Lusardi I, 747 F.2d at 176 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Xerox’s argument regarding conditional class certification failed to meet the first prong of Cohen because the district court’s order was subject to revision. Id. at 177. The district court’s order requiring Xerox to provide a mailing list of potential class plaintiffs and authorizing plaintiffs to send them notice was not appealable because it was “essentially a discovery device” and therefore interlocutory. Id. at 178. The parties agreed to randomly select a fifty-one class member “sample group” out of the thirteen hundred persons who responded to the initial notice and opted in. After making the selection, they entered into intensive discovery. It focused on both the sample group and the thirteen plaintiffs named in the second amended complaint. Lusardi’s motion to file a third amended complaint to add a fourteenth named plaintiff and thereby expand the class period to include April 1, 1983 through May 1, 1984, as well as to add class-wide allegations of state contract and age discrimination claims, was denied by Magistrate Ronald Hedges on June 2, 1986 and by the district court on June 17, 1986. Upon the completion of discovery, Xerox moved to decertify the conditional class. Lusardi filed a cross-motion for summary judgment or, in the alternative, for a presumption of class-wide liability. Lusardi also moved to strike Xerox’s expert report. On December 16, 1987, District Judge Alfred J. Lechner, Jr. granted Xerox’s motion to decertify the class and denied Lu-sardi’s motions as moot. In a seventy-five page opinion, the district court assessed the class in light of the “similarly situated” requirement of § 16(b) of the Fair Labor Standards Act (FLSA), codified at 29 U.S. C.A. § 216(b) (West Supp.1988) (as amended by the Portal-to-Portal Act of 1947, 29 U.S. C.A. §§ 251-262 (West 1985)). Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987) (hereinafter Lusardi II). The district court first found that disparate employment situations among the class plaintiffs were “significant not only to plaintiffs' claims but as well to the ability of Xerox to defend against the claims.” Id. at 361. In examining Xerox’s defenses to several of the sample group members’ claims, the court concluded that “the proposed class plaintiffs are not similarly situated and that considerations of fairness, as well as, efficiency are defeated by maintenance of a class action in this case.” Id. at 363. The court reasoned: To proceed without permitting Xerox to raise at the liability stage of trial each and every defense available to it where each potential class member is readily identifiable and must step forward in order to assert and prove an individual claim for liability or at least be the subject of a defense particular to each such plaintiff would deprive defendant of the Fifth Amendment right to due process. App. at 667 (footnote omitted). The court interpreted the FLSA § 16(b)’s “similarly situated” requirement to “presuppose” a common defense, giving the defendant an opportunity to effectively defend against the class allegations. It distinguished International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), by explaining that in that case the union did not assert, or seek to assert, individual defenses against each class plaintiff. The district court also cited our decisions in Dillon v. Coles, 746 F.2d 998 (3d Cir.1984) and Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir.), cert. denied, — U.S. -, 108 S.Ct. 495, 98 L.Ed.2d 492 (1987) for the proposition that the liability phase of a class action is not concluded until the individual class members have demonstrated their bases for awards. Thus, the court reasoned, the defendant may assert each of its defenses at the liability stage of the trial. Because an ADEA class is formed by “opting-in,” thereby requiring each individual class member to demonstrate liability, “each individual class member must come forward in order to prove causation prior to any finding of liability to that class member and ... in each instance Xerox has the possibility of raising any one of [its] several defenses,” the district court concluded that “plaintiffs cannot be deemed similarly situated.” Lusardi II, 118 F.R.D. at 375. For all of these reasons, the district court determined that the opt-in plaintiffs were not “similarly situated” and ordered the class decertified. The district court also examined the ADEA’s filing requirements, interpreting § 626(d)(2) to require that each individual class plaintiff file an age discrimination charge with the EEOC before joining in a class action. The district court based its reading both on the plain language of the statute and on case law which refused to allow “piggybacking” when the EEOC filings did not allege classwide discrimination. The court read each of the four originally named plaintiffs’ EEOC charges as identical, with the exception of each plaintiff’s personal information. Those EEOC charges alleged a Xerox policy to eliminate persons over forty years old who were too old to be trained in other positions, and an employment practice discriminating against persons over forty as a class. The district court stated that these “references in the filings ... do not suggest the charge of discrimination concerned any person other than the individual named in the filing.” Lusardi II, 118 F.R.D. at 378. It therefore concluded that Lusardi and the other named plaintiffs did not file on behalf of “others similarly situated.” Lusardi appeals the district court’s order decertifying the class and petitions for a writ of mandamus. He argues that the order is appealable under the collateral order exception of Cohen. On the merits, Lusardi argues, inter alia, that the district court erred in finding that the opt-in plaintiffs were not “similarly situated” within § 16(b) of the FLSA and in interpreting the ADEA as requiring a timely EEOC filing by each of the potential plaintiffs in order to “opt-in” to the class action. Because we find that we lack appellate jurisdiction and that mandamus is not warranted except with respect to the requirement that each class plaintiff must have filed a timely administrative claim, we do not reach the merits of Lusardi’s other arguments. II. Appealability We will first address the appealability of the district court’s order decertifying the class. “A class action determination, affirmative or negative, is not in this circuit a final order appealable under 28 U.S.C. § 1291.” Katz v. Carte Blanche Corp., 496 F.2d 747, 752 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); see also DeMasi v. Weiss, 669 F.2d 114, 119 (3d Cir.1982). The district court did not certify its order as final for purposes of appeal pursuant to Federal Rule of Civil Procedure 54(b) or as a controlling question of law pursuant to 28 U.S.C.A. § 1292(b) (West Supp.1988). See Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 701-02 (3d Cir.1988); Katz, 496 F.2d at 752-56. In its order, the district court denied a stay of that order pending appeal. Until recently, the district court’s order might have been thought appealable under the Enelow-Ettelson doctrine. See Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935). That avenue of appeal, however, was recently foreclosed by the Supreme Court’s decision in Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S. -, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988), overruling the Enelow-Ettelson doctrine. See also Delta Traffic Serv., Inc. v. Occidental Chem. Corp., 846 F.2d 911 (3d Cir.1988). Lusardi’s only other available basis for appellate jurisdiction over the district court’s decertification order is the “collateral order” doctrine of Cohen, set out supra. However, the Supreme Court has held that class action determinations do not fall within the Cohen exception. Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). In that case, plaintiffs, securities purchasers, brought a Rule 23 class action against an accounting firm for misstatements in a prospectus in violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. The district court first certified and later decertified the class. The Court of Appeals held it had jurisdiction and reversed the order decertifying the class. The Supreme Court granted certiorari and held the order not appealable under 28 U.S.C. § 1291. After setting out the three prongs of Cohen’s “collateral order” exception to § 1291, the Court held that the district court’s order did not fall within that exception: First, such an order is subject to revision in the District Court. Second, the class determination generally involves considerations that are “enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Finally, an order denying class certification is subject to effective review after final judgment at the behest of the named plaintiff or intervening class members. For these reasons, ... the collateral-order doctrine is not applicable to the kind of order involved in this case. Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458 (footnotes and citations omitted). We dismissed Xerox’s earlier appeal of the district court’s order conditionally certifying the class for similar reasons. See Lusardi I, 747 F.2d at 177-78. Plaintiffs argue that Lusardi I is distinguishable because it dealt with the conditional certification of a class rather than a decertification, which plaintiffs term a “final order.” A decertification order is reviewable upon appeal from a final judgment. Samuel v. University of Pittsburgh, 506 F.2d 355, 360 (3d Cir.1974). Therefore, such an order, whether based on a Rule 23 or an FLSA § 16(b) class action, fails to fall within the Cohen “collateral order” exception. The wisdom of denying appellate review of class determinations is well illustrated by this case. In opt-in class actions, with their similarities to bills of peace, permissive joinders and intervention and their accompanying tolling problems, it is of the utmost importance that the decision on class status be made promptly so that class members know whether to accept the “invitation to come in” or look out for themselves. See Z. Chafee, Some Problems of Equity, 259-61 (1950) (hereinafter Chafee). Lusardi filed his first complaint on March 8, 1983. On January 30, 1984 the district court decided to conditionally certify a class. There was an appeal and accompanying petition for mandamus. The case was transferred to a different district judge. Discovery dragged on. On December 16, 1987, the district judge decertified the class. As noted, we stayed that order. The case will now be remanded with the class status to be redetermined. III. Mandamus In their petition for mandamus, Lusardi and the other individual plaintiffs assert five reasons why the writ should be granted. Before considering those reasons separately, we believe it is useful to set forth generally the principles applied in this jurisdiction in determining whether this extraordinary writ should issue, as well as those relating to the certification and maintenance of actions under FLSA § 16(b). A. Authority to issue mandamus is granted by 28 U.S.C.A. § 1651. It provides: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C.A. § 1651(a) (West 1966). The writ is an extraordinary use of power by an appellate court. Its use is contrary to the common law policy of avoiding piecemeal appellate review of cases pending in courts of original jurisdiction. The policy is of great importance in preserving judicial efficiency and orderly procedure. Cases which go through a trial court by fits and starts are not likely to have a reasonably prompt disposition. Halting their flow through the judicial system while awaiting appellate consideration of interim orders or decrees is, at best, disruptive. Also, use of the writ is likely to require resolution of issues which disappear or shrink to insignificance in the context of a final judgment. As stated, this case is a good example of the problems its use or solicitation creates. Modern appellate practice includes various devices unknown to the common law when the writ was developed. They both serve to oil the somewhat arthritic joints of the strict common law rule of finality and to decrease the need for parties to rely exclusively upon the writ for relief from a court order. The lubricants include the certified interlocutory appeal, 28 U.S.C.A. § 1292(b), and the judicially developed collateral order exception of Cohen. Accordingly, the writ is seldom issued and its use is discouraged. Nevertheless, when no other avenue is open, i.e., when a party seeking the writ has no other adequate means to attain the relief he desires and the court below has committed a clear error of law, it may issue. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 (3d Cir.1986) (quoting Sporck v. Peil, 759 F.2d 312, 314 (3d Cir.1985)), cert. denied, — U.S. -, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987). The clear error should at least approach the magnitude of an unauthorized exercise of judicial power, or a failure to use that power when there is a duty to do so. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661, 98 S.Ct. 2552, 2556, 57 L.Ed.2d 504 (1978); Citibank, N.A. v. Fullam, 580 F.2d 82, 86 (3d Cir.1978). These requirements are in accord with § 1651(a). When they are met, issuance of mandamus may be necessary to preserve appellate jurisdiction. Otherwise, our ability to review an issue likely to control the availability of the relief sought would be lost. It is also “agreeable to the usages and principles of law:” “[Traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Calvert Fire Ins. Co., 437 U.S. at 661, 98 S.Ct. at 2556 (quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943)). Still, the presence of power does not compel its exercise. Even in the presence of a clear error of law which would otherwise escape review and a showing by a party that his right to this relief is “clear and indisputable,” issuance of a writ is within our discretion. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976). In using that discretion, judges should proceed both carefully and courageously. B. Special problems are present in determining whether mandamus is warranted in the context of the kind of class action before us. The availability of the class action device to Lusardi is not controlled by Federal Rule of Civil Procedure 23, but by § 16(b) of the FLSA, incorporated into the ADEA by § 626(b) of that statute. The current version of FLSA § 16(b) reads, in relevant part: (b) ... An action to recover the liability prescribed in [this subsection] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C.A. § 216(b) (West 1988). On June 25, 1938, the date of § 16(b)’s enactment, the Federal Rules of Civil Procedure had been proposed and were pending before Congress, but had not yet become effective. One problem bedeviling the common law of class actions in this country in 1938 was the binding effect of the class action decree on absent class members. Chafee, supra, at 224-25. In the United States the application of res judicata to absent parties in class suits raised constitutional issues of due process. Compare Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673 (1921) (holding all members of beneficial society bound by state decree in class action, including citizens of the state in which federal action seeking to enforce state decree was brought, who were not parties to the state suit) and Restatement of Judgments § 86 (1942) (all members of class bound) with Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940) (reversing Illinois Supreme Court order that decree in class action enjoining violation of racially restrictive covenants bound absent class members). Two efforts were made in 1938 to deal with the due process problem in applying res judicata to class actions. Those efforts formalized the opt-in class. First, Congress enacted § 16(b) for the special purpose of facilitating enforcement of the FLSA. Second, and more generally, the Advisory Committee on the Federal Rules provided for notice to absent class members and included in old Rule 23, 23(a)(3)’s “spurious class.” Under both the statute and the rule, class actions in which absent members were not bound by the judgment were recognized. See Pentland v. Dravo Corp., 152 F.2d 851, 853 (3d Cir.1945). Difficulties in assigning a particular class action to one of the three categories of old Rule 23(a) led to the abandonment of the spurious class in the 1966 amendment to the rule, but the . opt-in class remains with us under § 16(b). See Fed.R.Civ.P. 23 advisory committee’s note (1966 amendment). Because § 16(b)’s coverage has been extended to age and sex discrimination laws to facilitate their enforcement, the class action in which only members who agree to participate are bound remains an important tool for their enforcement in cases of systemic discrimination. Used properly, it reduces multiplicity of suits and offers a convenient means of settling issues common to a large number of persons whose interest is sufficiently similar. To accomplish the Congressional purpose of encouraging private enforcement of these statutes by making it convenient and inexpensive for the persons they are meant to protect, the members of the class who opt-in receive the benefit of final judgment despite the action’s non-binding effect on absent members. Considering the historical development of opt-in class actions, and the analogies drawn to bills of peace, permissive joinder and intervention, the question arises whether each member of the opt-in class must individually satisfy all timeliness requirements. The resolution of that issue depends upon the intent of Congress in enacting § 16(b) and the incorporation of that section into the ADEA. Those issues are discussed infra section IY(D). IV. With these general principles and background in mind, we examine Lusardi’s arguments for granting mandamus. A. Lusardi first argues that the district court’s December 16, 1987 order violates the doctrine of law of the case because it conflicts with the January 31, 1984 order of another judge of that court conditionally certifying the class. In support, he cites Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3d Cir.1982), for the proposition that mandamus lies under 28 U.S.C.A. § 1651 when one district judge re-examines and reverses an order by another directing a transfer of a case. In Hayman, this court quoted with approval a statement by Justice Frankfurter that such conduct promotes “judicial unseemliness.” 669 F.2d at 166-68 (quoting Hoffman v. Blaski, 363 U.S. 335, 346-49, 80 S.Ct. 1084, 1091-93, 4 L.Ed.2d 1254 (1960) (Frankfurter, J. dissenting)). An examination of the prior order in this case disposes of that argument. It states: 7. Conditional certification of this action as a class action is without prejudice to the respective parties’ rights to move for decertification of the action as a class action or for enlargement or modification of the class definition or for modification of this Order. App. at 182. At a hearing on December 22, 1983 on the question of class certification, the district judge who entered the order of January 30, 1984 asked: “Can I do this conditionally?” Counsel for Lusardi responded: “Yes, your Honor. I expect this to be conditionally. Totally.” App. at 105. Thereafter, the following colloquy took place: THE COURT: And then we’ll — you know, what that means really is conditional. If he can’t establish a broad base centralized policy, then I’m probably not going to go ahead with the case in this form. I’m not interested in creating a monster that no one can deal with, made up with a lot of individual people with specific grievances. MR. FREUND: That’s right, your Honor. THE COURT: No one is going to kill it any faster than I am. I mean in terms of not sticking — I’m not going to stick a thousand or 5,000 or 10,000 eases together that shouldn’t be. I wouldn’t be able to handle it. If there wasn’t a broad-base policy here, then it is hard to believe this thing should go forward. But it is that very allegation which interests me in continuing this investigation. App. at 108-09. We dismissed Xerox’s appeal from this order conditionally certifying the class for lack of jurisdiction. Lusardi I, 747 F.2d at 178. Lusardi’s law of the case argument poses a conflict between the rationale of the order conditionally certifying the class and the rationale of the order decertifying it. Arguably, the earlier order made decertifi-cation dependent only on Lusardi’s failure to produce evidence of a company-wide pattern or practice of age discrimination. If so, once evidence of that pattern was produced, Xerox’s evidence of, or reliance on, disparate individual defenses would be irrelevant on the issue of whether the persons electing to opt-into the litigation were similarly situated. Accordingly, Lusardi contends that the order decertifying the class because of disparate defenses, as evidenced by the opinion in support of decerti-fication, conflicts with the order conditionally certifying the class. The order conditionally certifying the class expressly contemplates the possibility of later decertification. When the recognized possibility of decertification is made a reality by the later order, there is no clear conflict or unwarranted re-examination. A writ of mandamus based on conflicting action by two coordinate judges should issue only on a plain conflict in their orders. Appeals do not lie and writs do not issue to reconcile ratio decidendi. They are used to vacate, reverse, affirm or modify orders. The asserted conflict between the order of conditional certification and the order of decertification does not warrant mandamus. B. Lusardi’s second contention is that “[t]he district court committed a clear abuse of discretion by requiring direct proof of discriminatory intent by Xerox in order for plaintiffs Lusardi to establish a prima facie case of a pattern and practice of age discrimination in this FLSA section 16(b) class action.” Plaintiffs’ Petition for Mandamus at 37. As he develops this argument, Lusardi shifts to a contention that statistical proof of the disparate impact of a reduction in force creates a pri-ma facie case entitling each member of the protected class who opts in to jury consideration of his discrimination claim. This presence of statistical proof, he contends, is a common issue of fact that makes all the opt-in claimants similarly situated within the meaning of § 16(b) of FLSA. See Distelhorst v. Day & Zimmerman, 58 F.Supp. 334, 335 (S.D.Iowa 1944) (holding any common issue of fact meets the similarly situated test of FLSA § 16(b)), appeal dismissed, 150 F.2d 541 (8th Cir.1945). In making that argument, Lusardi relies on United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), as well as our Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Fred FLOYD, Appellant, v. UNITED STATES of America, Appellee. No. 10247. United States Court of Appeals Fourth Circuit. Argued March 11, 1966. Decided May 4, 1966. C. S. Bowen and Robert A. Clay, Green-ville, S. C., for appellant. Jerome I. Chapman, Atty., Dept, of Justice (Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Rothwacks and George F. Lynch, Attys., Dept, of Justice, and John C. Williams, U. S. Atty., and James D. McCoy, III, Asst. U. S. Atty., on brief), for appellee. Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and J. BRAXTON CRAVEN, Jr., District Judge. SOBELOFF, Circuit Judge: An action was brought against the United States by Fred Floyd to restrain the collection of certain cabaret taxes, to remove the assessment against him therefor, and to release his property from seizure and threatened sale thereunder. Floyd’s complaint recites that the cabaret, the operation and ownership of which gives rise to a tax obligation, is in fact owned solely by his wife, and that he is not in any way financially involved in the enterprise. The District Court granted the Government’s motion to dismiss, relying on section 7421(a) of the Internal Revenue Code of 1954, which reads: “Except as provided in sections 6212(a) and (c) and 6213(a) [which are not here relevant], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U.S.C.A. § 7421(a). We agree with the District Court that dismissal is compelled under the Supreme Court’s interpretation of section 7421(a) in Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). There the Court was dealing with a suit by an employer to restrain the collection of social security taxes and unemployment taxes asserted by the Government to be due. The employer claimed that there was no employment relationship to which the taxes could apply. In reversing the lower courts’ grant of injunctive relief, the Supreme Court declared that a suit by an allegedly delinquent taxpayer to enjoin the collection of taxes must be dismissed for want of jurisdiction unless “it is clear that under no circumstances could the Government ultimately prevail.” 370 U.S. at 7, 82 S.Ct. at 1129. In the instant case the District Court concluded, and we concur, that it is not at all clear that the Government will ultimately fail to establish that the tax liability arising from the operation of the cabaret attaches to Mr. as well as Mrs. Floyd. Appellant nevertheless presses the contention that he is a non-taxpayer, and therefore outside the proscription against suits for injunctive relief embodied in section 7421(a). Floyd does not dispute that the taxes assessed are valid taxes and are owed by the owner of the cábaret, but denies that he has any interest in the cabaret upon which tax liability could lawfully be predicated as to him. In response to this contention it is sufficient to say that this is precisely the issue that should be resolved in the ordinary channels of tax litigation. Falik v. United States, 343 F.2d 38 (2d Cir. 1965), (injunctive relief denied where plaintiff sought to contest the Government’s determination that she was a responsible officer of a tax-delinquent corporation). See also Cooper Agency, Inc. v. McLeod, 235 F.Supp. 276 (E.D.S.C.1964), aff’d per curiam, 348 F.2d 919 (4th Cir. 1965); Broadwell v. United States, 234 F.Supp. 17 (E.D.N.C.1964), aff’d per curiam, 345 F.2d 470 (4th Cir. 1965); Quinn v. Hook, 231 F.Supp. 718 (E.D.Pa.1964), aff’d per curiam, 341 F.2d 920 (3d Cir. 1965). This is not a case where a property owner under no tax assessment is seeking to enjoin the Government from seizing his property to satisfy the tax obligation of another. Cf. Raffaele v. Granger, 196 F.2d 620 (3d Cir. 1952); Adler v. Nicholas, 166 F.2d 674 (10th Cir. 1948). See also Shelton v. Gill, 202 F.2d 503, 506 (4th Cir. 1953). Where no tax deficiency has been asserted against one whose property is seized, a suit against the Government for injuncfive relief seems peculiarly appropriate, for the aggrieved party, not being an alleged tax delinquent, would have no opportunity in the ordinary channels of tax litigation to contest the validity of the Government’s assessment. With respect to Mr. Floyd, however, his complaint shows on its face that the Government has made a levy against him for a deficiency, and we cannot say that this is an exaction merely in “the guise of a tax.” Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125 (1962). The Order of the District Court is Affirmed. . 26 U.S.C.A. § 4231. . A complete statement of the Court’s conclusion follows: “The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to he due without judicial intervention, and to require that the legal right to the disputed sums he determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, * * * the attempted collection may he enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ * * * “We believe that the question, of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” 370 U.S. at 7, 82 S.Ct. at 1129. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_issue_1	56	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. NELSON, aka ZIKEE v. UNITED STATES No. 08-5657. Decided January 26, 2009 Per Curiam. Lawrence Nelson was convicted of one count of conspiracy to distribute and to possess with intent to distribute more than 50 grams of cocaine base. See 21 U. S. C. § 846. The District Court calculated Nelson’s sentencing range under the United States Sentencing Guidelines, and imposed a sentence of 360 months in prison (the bottom of the range). During sentencing, the judge explained that under Fourth Circuit precedent, “ ‘the Guidelines are considered presumptively reasonable,’ ” so that “ ‘unless there’s a good reason in the [statutory sentencing] factors ..., the Guideline sentence is the reasonable sentence.’” Pet. for Cert. 10. The United States Court of Appeals for the Fourth Circuit affirmed Nelson’s conviction and sentence. United States v. Nelson, 237 Fed. Appx. 819 (2007) (per curiam). It noted that within-Guidelines sentences are presumptively reasonable, and rejected Nelson’s argument that the District Court’s reliance on that presumption was error. Id., at 821. Nelson filed a petition for a writ of certiorari. We granted the petition, vacated the judgment, and remanded the case to the Fourth Circuit for further consideration in light of Rita v. United States, 551 U. S. 338 (2007). Nelson v. United States, 552 U. S. 1163 (2008). On remand and without further briefing, the Fourth Circuit again affirmed the sentence. 276 Fed. Appx. 331 (2008) (per curiam). The court acknowledged that under Rita, while courts of appeals “may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines,” 551 U. S., at 347, “the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply,” id., at 351. Instead, the sentencing court must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U. S. C. § 3553(a), explaining any variance from the former with reference to the latter. Nonetheless, the Fourth Circuit upheld the sentence, finding that the District Court did not treat the Guidelines as “mandatory” but rather understood that they were only advisory. 276 Fed. Appx., at 333. Nelson has again filed a petition for a writ of certiorari, reasserting, inter alia, essentially the same argument he made before us the first time: that the District Court’s statements clearly indicate that it impermissibly applied a presumption of reasonableness to his Guidelines range. The United States admits that the Fourth Circuit erred in rejecting that argument following our remand; we agree. Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable. In Rita we said as much, in fairly explicit terms: “We repeat that the presumption before us is an appellate court presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” 551 U. S., at 351. And in Gall v. United States, 552 U. S. 38 (2007), we reiterated that district judges, in considering how the various statutory sentencing factors apply to an individual defendant, “may not presume that the Guidelines range is reasonable.” Id., at 50. In this case, the Court of Appeals quoted the above language from Rita but affirmed the sentence anyway after finding that the District Judge did not treat the Guidelines as mandatory. That is true, but beside the point. The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range. Under our recent precedents, that constitutes error. The petition for certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Question: What is the issue of the decision? 01. involuntary confession 02. habeas corpus 03. plea bargaining: the constitutionality of and/or the circumstances of its exercise 04. retroactivity (of newly announced or newly enacted constitutional or statutory rights) 05. search and seizure (other than as pertains to vehicles or Crime Control Act) 06. search and seizure, vehicles 07. search and seizure, Crime Control Act 08. contempt of court or congress 09. self-incrimination (other than as pertains to Miranda or immunity from prosecution) 10. Miranda warnings 11. self-incrimination, immunity from prosecution 12. right to counsel (cf. indigents appointment of counsel or inadequate representation) 13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) 14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) 15. line-up 16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) 17. double jeopardy 18. ex post facto (state) 19. extra-legal jury influences: miscellaneous 20. extra-legal jury influences: prejudicial statements or evidence 21. extra-legal jury influences: contact with jurors outside courtroom 22. extra-legal jury influences: jury instructions (not necessarily in criminal cases) 23. extra-legal jury influences: voir dire (not necessarily a criminal case) 24. extra-legal jury influences: prison garb or appearance 25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) 26. extra-legal jury influences: pretrial publicity 27. confrontation (right to confront accuser, call and cross-examine witnesses) 28. subconstitutional fair procedure: confession of error 29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) 30. subconstitutional fair procedure: entrapment 31. subconstitutional fair procedure: exhaustion of remedies 32. subconstitutional fair procedure: fugitive from justice 33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) 34. subconstitutional fair procedure: stay of execution 35. subconstitutional fair procedure: timeliness 36. subconstitutional fair procedure: miscellaneous 37. Federal Rules of Criminal Procedure 38. statutory construction of criminal laws: assault 39. statutory construction of criminal laws: bank robbery 40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) 41. statutory construction of criminal laws: escape from custody 42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) 43. statutory construction of criminal laws: financial (other than in fraud or internal revenue) 44. statutory construction of criminal laws: firearms 45. statutory construction of criminal laws: fraud 46. statutory construction of criminal laws: gambling 47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 48. statutory construction of criminal laws: immigration (cf. immigration and naturalization) 49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation) 50. statutory construction of criminal laws: Mann Act and related statutes 51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol 52. statutory construction of criminal laws: obstruction of justice 53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) 54. statutory construction of criminal laws: Travel Act, 18 USC 1952 55. statutory construction of criminal laws: war crimes 56. statutory construction of criminal laws: sentencing guidelines 57. statutory construction of criminal laws: miscellaneous 58. jury trial (right to, as distinct from extra-legal jury influences) 59. speedy trial 60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure) Answer:
songer_typeiss	C	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. FARMERS ELEVATOR MUTUAL INSURANCE CO., a corporation, Appellant, v. CARL J. AUSTAD & SONS, INC., a Corporation; Tri-State Insurance Company, a Corporation; L. P. Gas Transport Company, a Corporation, and Martha D. Tatro, Individually and as Trustee for the North Dakota Workmen’s Compensation Bureau, Appellees. No. 17773. United States Court of Appeals Eighth Circuit. March 18, 1965. William R. Reichert, Dickinson, N. D., made argument for the appellant and filed brief with Frederick Saefke, Jr., Bismarck,. N. D. Patrick A. Conmy, Bismarck, N. D., made argument for appellee, Tri-State Ins. Co. and filed brief. E. F. Engebretson, Bismarck, N. D.t made argument for appellees Carl J. Aus-tad & Sons, Inc., and L. P. Gas Transport Co. and filed brief. Before VOGEL, MATTHES, and RIDGE, Circuit Judges. MATTHES, Circuit Judge. This declaratory judgment action was filed on August 19, 1963, in the United States District Court for the District of North Dakota. Farmers Elevator Mutual Insurance Co. (Farmers), an Iowa corporation, was plaintiff and is the appellant. The defendants and appellees are: Carl J. Austad & Sons, Inc. (Aus-tad) ‘r Tri-State Insurance Company (Tri-State); L. P. Gas Transport Company (Transport) and Martha D. Tatro, individually and as Trustee for the North Dakota Workmen’s Compensation Bureau. The purpose of this action is to obtain a judicial determination of the following questions: (a) whether or not Tri-State must defend Scranton Equity Exchange (Scranton).In the wrongful death action brought by Martha D. Tatro in the District Court of Bowman County, North Dakota; (b) whether Tri-State has the primary coverage or liability upon Scranton in such case or on an equal basis with Farmers; (c) whether if Tri-State for any reason is not primarily liable that Transport should be required to defend Scranton in such action. Diversity of citizenship and the amount involved establishes - jurisdiction of the subject matter. There arose, however, and still exists a venue question as to Transport. There is the additional contention that the Court’s decision on the merits is erroneous. Before passing to the problems presented by the appeal, we deem it desirable to designate and more fully describe all parties having any connection with this litigation or the event which caused the death of Harry Tatro, the husband of Martha D. Tatro, out of which this action arose. Scranton, not a party, is a cooperative which owned and operated a liquified petroleum bulk storage plant in Scranton, North Dakota. Farmers had issued a liability insurance policy to Scranton which covered Scranton’s bulk storage plant and was in effect when the incident occurred giving rise to the coverage question. Austad is a North Dakota corporation that was engaged in the transportation of petroleum .products by motor truck. TriState was authorized to do business in North Dakota and was a resident of that state for venue purposes. Tri-State had issued a policy of liability insurance to Austad which covered the motor equipment used for transporting petroleum products. Harry Tatro was an employee of Austad; Martha D. Tatro, a defendant and appellee, is the widow of Harry Tatro. The complaint alleged that Transport, a Wyoming or Montana corporation, had authority from the I.C.C. to transport petroleum products in other states; leased trucks and drivers from Austad and transported petroleum products in such leased equipment. The operative facts, stipulated by the parties and so found by the District Court, are as follows. On June 8, 1961, a tractor and tank trailer combination unit, owned by Austad and -driven by Harry Tatro, stopped at the facilities and property of Scranton for the purpose of making a delivery of propane gas. Tatro drove such unit to the unloading area of the bulk plant and hooked up the hoses used on the truck to the truck outlets and to the inlets on the pipeline system maintained by the bulk plant; Tatro was in the process of opening a valve located on top of a storage tank when an explosion occurred, the effect of which was to knock him off the tank, set him afire and inflict injuries which proved fatal. The delivery was made at approximately-midnight at which time no employees, agents, or representatives of Scranton were present or participated in any manner in the subsequent unloading procedures. It was the custom under such circumstances for the driver of the truck making the delivery, to perform everything that was necessary for the unloading and later deliver the papers evidencing such unloading and the quantity unloaded to the manager of the plant, and insofar as the incident here involved is concerned, the driver was acting pursuant to such custom. Tatro’s widow, Martha D. Tatro, sought and received benefits under the North Dakota Workmen’s Compensation Act. Prior to the institution of the present action Martha D. Tatro, individually and as Trustee for the North Dakota Workmen’s Compensation Bureau, brought the wrongful death action against Scranton for damages resulting from the death of her husband, alleging that the death of Tatro was proximately caused by the negligence of Scranton in the construction and maintenance of its storage facilities. Farmers, while conceding that it is the liability insurer of Scranton, tendered the defense of the Tatro action to Tri-State on the theory that Scranton was an additional insured under the Tri-State policy. This tender of defense was refused by Tri-State. Early in this litigation, Transport raised the venue question. It filed a motion to dismiss, or in lieu thereof to quash the return of service of process on the ground that it had not been properly served, and that the venue was improper in that all defendants do not reside in the State of North Dakota. Two affidavits dated September 27,1963, were filed in support of the motion — one by Transport’s attorney to the effect that Transport was not doing business in North Dakota when this action was instituted.; that on January 8, 1962, a plan of dissolution was approved by the stockholders of Transport and in pursuance thereof all assets for the corporation were disposed of and the transfer of the assets was completed on January 4,1963; and since that date the corporation existed as a mere “corporate shell” and has had no officers or directors. The other affidavit by the Secretary of State of North Dakota was to the effect that Transport is not and never has been authorized or qualified to transact business in North Dakota according to the provisions of the North Dakota Business Corporation Act. Neither affidavit was controverted. On January 27, 1964, the trial court entered an order granting Transport’s motion and dismissed the complaint and action against that defendant. On February 13, 1964, the trial court filed a memorandum opinion on the merits finding that Tri-State’s policy did not provide coverage to Scranton for Tatro’s death and that Tri-State is under no obligation to defend the Martha D. Tatro action. The Court’s opinion is published at 238 F.Supp. 243. Appellant filed a petition for rehearing in which it complained in particular of the Court’s prior action in dismissing Transport from the case. The petition was denied on April 14, 1964, following which, appellant filed a timely notice of appeal. Appellant’s first point challenges the Court’s dismissal of the action against Transport. The issue brings into prominence Title 28 U.S.C.A. § 1391, the venue statute which in pertinent part provides : “(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside. «•*• “(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.” As noted, appellant brought this action in the judicial district of North Dakota, the residence of all defendants with possible exception of Transport. The precise question is whether, for venue purposes, Transport is also a resident of that district. Concededly, Transport was not incorporated in North Dakota and according to the affidavit of the North Dakota Secretary of State had never been authorized to transact business in that state which we assume is tantamount to saying it had not been licensed to do business in North Dakota. The issue is thus narrowed to the third element of § 1391(c), that is, whether Transport was “doing business” in the district. The answer to this question depends upon the meaning of the phrase “in which it is * * * doing business.” Is this requirement satisfied by showing that Transport was doing business in the North Dakota District at the time when the cause of action arose, June 8, 1961, or must it be shown that Transport was doing business in North Dakota when this suit was brought on August 19, 1963? Apparently the trial court was of the view that the nontrolling time which the “doing business” provision refers to is governed by citizenship determinations as in diversity actions. Thus, in its memorandum opinion dealing with the venue issue the Court stated: “ * * * Apparently the plaintiff concedes that said defendant L. P. •Gas Transport Company was not doing business in this state at the time of the commencement of this action, but contends that it was so doing at the time the cause of action arose. A decision as to which date is the critical one for this purpose, therefore, should determine the motion. The law has been specifically stated by the Court of Appeals for the Eighth Judicial Circuit. ‘ * * * diversity of citizenship must exist not as of the time the cause of action arises, but as of the time the suit is instituted * * Russell v. New Amsterdam Casualty Company and Consumers Public Power District, 8 Cir., January 6, 1964 [325 F.2d 996]. See also Jansen v. Goos, 8 Cir., 302 F.2d 421 (1962).” To be sure, the citizenship of the parties at the time of the institution of the action, is controlling in determining whether federal diversity jurisdiction exists. However, jurisdiction of the subject matter — the power and authority of the Court to act, 14 Am.Jur. Courts, § 160; 21 C.J.S. Courts § 15, is not equivalent in meaning to Venue, the place where the power to adjudicate is to be exercised, the place where the suit may be or should be heard, 56 Am.Jur. Venue, § 2; 92 C.J.S. Venue § 1. The terms “jurisdiction” and “venue” should not be confused, “for jurisdiction may not be conferred by consent or waiver upon a court which otherwise would have no jurisdiction of the subject matter of an action; but the venue of an action as fixed by statute may be changed by the consent of the parties and an objection that the plaintiff brought his suit in the wrong county may be waived by the failure of the defendant to make a timely objection.; in either such case the court may render a valid judgment.” 56 Am. Jur. Venue, § 2. Because of these fundamental differences, the tests to be applied in determining whether there is jurisdiction of the subject matter do not necessarily control the resolution of venue questions. There seems to be a dearth of authority on the precise problem and our research indicates it may be a question of first impression in this circuit. Additionally, the courts that have spoken are not in full accord. Barron and Holtzoff, Vol. I, Sec. 80, Venue, 1964 Pocket Part, states: “It is not settled whether the relevant time for determining if the corporation was doing business in the state is the date when the claim arose or the date when suit was brought.” In Sunbury Wire Rope Mfg. Co. v. United States Steel Corp., 230 F.2d 511 (3 Cir. 1956) the Court stated in effect, without fortifying reasons, that the controlling time was the commencement of the action. That case, however, turned on consent and waiver and we do not regard the Court’s expression as to the time element of controlling importance. The United States District Court of Maryland has been confronted with the identical situation on two occasions. L’Heureux v. Central American Airways Flying Service, Inc., 209 F.Supp. 713 (Md.1962); Nelson v. Victory Electric Works, Inc., 210 F.Supp. 954 (Md. 1962). In L’Heureux, Chief Judge Thomsen considered the venue law relating to corporate defendants as it existed before the enactment of the Judicial Code of 1948, of which 28 U.S.C.A. § 1391(c) is a part, as well as the purpose and effect of the Act. Of relevance here is Judge Thomsen’s conclusion that “A principal purpose of Congress in enacting sec. 1391(c) was to remove any possible advantage with respect to venue which a corporation might obtain by failing to observe the licensing requirements of a state in which it does business.” 209 F.Supp. at page 715. We agree and are likewise in accord with the view that the purpose of Congress can be fully achieved only if foreign corporations — those that qualify and those which do not — can be sued in the federal court hi actions arising out of business transacted in the state and district where the suit is filed. We believe and hold that Congress intended that the venue requirements of § 1391(c) are satisfied by showing that the defendant corporation was doing business in the district at the time the cause of action arose. The rule contended for by Transport and applied by the District Court could give to a foreign corporation which was doing business in another state without having qualified in accordance with.the licensing requirements, an unfair advantage. By the expedient of retreating from and ceasing to do business in the judicial district where the cause of action arose out of business done by it, the corporation could insulate itself from litigation in that district and the aggreived party would be required, perhaps at great inconvenience, to seek redress in the judicial district where the corporation was incorporated. We therefore conclude that the District Court erred in dismissing Transport from the action. Inasmuch as the Court ruled that August 19, 1963 (when this action was brought) is the critical date, it was not required to and did not determine whether Transport was doing business in North Dakota on June 8, 1961, when the cause of action arose which precipitated this lawsuit. The record gives strong indication that it was. Of course, even if Transport is found to be amenable to the Court’s jurisdiction, the judgment on the merits may be the same. We make no intimation in that regard. Our holding simply means that the Court should determine the venue question on the basis of whether Transport was doing business in North Dakota on June 8,1961. If it was, and if service of summons upon Transport was in compliance with the law, then there should be an adjudication of the obligations and liability of Transport in light of the issues presented. We also suggest by way of caveat that under Rule 12(b) Fed.R.Civ.P. 28 U.S.C.A., a motion raising objections to venue must be filed within twenty days after service of the summons and complaint. Failure to comply with this requirement constitutes a waiver of Rule 12(h) Fed.R.Civ.P.; see Nelson v. Victory Electric Works, Inc., supra, 210 F. Supp. at p. 957. The record fails to disclose the date of service upon Transport, hence we are not in a position to determine whether the objections to venue were timely. The order dismissing Transport and the judgment on the merits are vacated and the cause is remanded with directions to proceed in accordance with our views herein expressed. . The Maryland Court, Judge Northrop, reached the same conclusion in the Nelson ease, supra, 210 F.Supp. 954 (1962). Compare R. J. Coulter Funeral Home v. National Burial Ins. Co., 192 F.Supp. 522 (E.D.Tenn.1960) and Sharp v. Commercial Solvents Corp., 232 F.Supp. 323 (N.D.Tex.1964) and see for a general discussion of the venue statute, 1 Moore, Federal Practice, Par. 0.142 [5-3] p. 1489 et seq. (2nd Ed. 1964.) . Transport is designated as a Wyoming corporation in one part of the record and as a Montana corporation in another part. This uncertainty is not material. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_certreason	L	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. BROTHERHOOD OF RAILROAD TRAINMEN et al. v. O’CONNELL et al. No. 158. Argued January 14, 1969. Decided May 26, 1969 Arnold B. Elkind argued the cause and filed a brief for petitioners in No. 158. David Leo Uelmen argued the cause for petitioners in No. 172. With him on the briefs were David Previant, John J. Naughton, James P. Reedy, and Gerry M. Miller. Lee LeibiJc argued the cause for respondents in each case. With him on the briefs was Ruth Weyand. Harold A. Ross filed briefs for the Brotherhood of Locomotive Engineers as amicus curiae urging reversal in both cases. Harold C. Heiss filed a brief for the Brotherhood of Locomotive Firemen & Enginemen as amicus curiae urging affirmance in both cases. Together with No. 172, Dirks et al. v. Birkholz et al., on certiorari to the United States Court of Appeals for the Seventh Circuit. Per Curiam. The judgments are vacated and the cases are remanded to the respective district courts with instructions to dismiss the cases as moot. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
sc_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. DAVIS v. WASHINGTON No. 05-5224. Argued March 20, 2006 Decided June 19, 2006 Jeffrey L. Fisher, by appointment of the Court, 546 U. S. 1074, argued the cause for petitioner in No. 05-5224. With him on the briefs was Nancy Collins. Richard D. Friedman, by appointment of the Court, 546 U. S. 1088, argued the cause for petitioner in No. 05-5705. With him on the briefs was Kimberly A. Jackson. James M. Whisman argued the cause for respondent in No. 05-5224. With him on the brief were Norm Maleng, Deborah A. Dwyer, and Lee D. Yates. Thomas M. Fisher, Solicitor General of Indiana, argued the cause for respondent in No. 05-5705. With him on the brief were Steve Carter, Attorney General, and Nicole M. Schuster and Julie A. Hoffman, Deputy Attorneys General. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance in No. 05-5224. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Irving L. Gornstein, and Joel M. Gershowitz. Mr. Gornstein argued the cause for the United States as amicus curiae urging affirmance in No. 05-5705. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, and Deputy Solicitor General Dreeben. Together with No. 05-5705, Hammon v. Indiana, on certiorari to the Supreme Court of Indiana. Briefs of amici curiae urging reversal in both eases were filed for the American Civil Liberties Union et al. by Jordan Gross, Steven R. Shapiro, Lenora Lapidus, Ken Falk, and Aaron Caplan; and for the National Association of Criminal Defense Lawyers et al. by Timothy P. O’Toole, Catharine F. Easterly, Andrea Roth, Corinne Beckwith, Pamela Harris, and Sheryl McCloud. Briefs of amici curiae urging affirmance in both cases were filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Michael Scodro, Deputy Solicitor General, and Linda D. Woloshin and Anderson M. Gansner, Assistant Attorneys General, by Christopher L. Morano, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of Colorado, Carl C. Dan-berg of Delaware, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, George J. Chanos of Nevada, Patricia A. Madrid of New Mexico, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Patrick J. Crank of Wyoming; for Cook County, Illinois, by Richard A. Devine and Veronica Calderon Malavia; for the National Association of Counsel for Children by Anthony J. Frame; for the National District Attorneys Association by Mark Ryan Dwyer, David M. Cohn, Susan Axelrod, and Joshua A. Engel; and for the National Network to End Domestic Violence et al. by Antonia B. Ianniello, Michael D. Rips, Jen nifer K. Brown, Lynn Hecht Schafran, Joan S. Meier, and Fernando R. Laguarda. Kym L. Worthy and Timothy A Baughman filed a brief for Wayne County, Michigan, as amicus curiae urging affirmance in No. 05-5705. Justice Scalia delivered the opinion of the Court. These cases require us to determine when statements made to law enforcement personnel during a 911 call or at a crime scene are “testimonial” and thus subject to the requirements of the Sixth Amendment’s Confrontation Clause. I A The relevant statements in Davis v. Washington, No. 05-5224, were made to a 911 emergency operator on February 1, 2001. When the operator answered the initial call, the connection terminated before anyone spoke. She reversed the call, and Michelle McCottry answered. In the ensuing conversation, the operator ascertained that McCottry was involved in a domestic disturbance with her former boyfriend Adrian Davis, the petitioner in this ease: “911 Operator: Hello. “Complainant: Hello. “911 Operator: What’s going on? “Complainant: He’s here jumpin’ on me again. “911 Operator: Okay. Listen to me carefully. Are you in a house or an apartment? “Complainant: I’m in a house. “911 Operator: Are there any weapons? “Complainant: No. He’s usin’ his fists. “911 Operator: Okay. Has he been drinking? “Complainant: No. “911 Operator: Okay, sweetie. I’ve got help started. Stay on the line with me, okay? “Complainant: I’m on the line. “911 Operator: Listen to me carefully. Do you know his last name? “Complainant: It’s Davis. “911 Operator: Davis? Okay, what’s his first name? “Complainant: Adran “911 Operator: What is it? “Complainant: Adrian. “911 Operator: Adrian? “Complainant: Yeah. “911 Operator: Okay. What’s his middle initial? “Complainant: Mar tell. He’s runnin’ now.” App. in No. 05-5224, pp. 8-9. As the conversation continued, the operator learned that Davis had “just r[un] out the door” after hitting McCottry, and that he was leaving in a car with someone else. Id., at 9-10. McCottry started talking, but the operator cut her off, saying, “Stop talking and answer my questions.” Id., at 10. She then gathered more information about Davis (including his birthday), and learned that Davis had told McCottry that his purpose in coming to the house was “to get his stuff,” since McCottry was moving. Id., at 11-12. McCottry described the context of the assault, id., at 12, after which the operator told her that the police were on their way. “They’re gonna check the area for him first,” the operator said, “and then they’re gonna come talk to you.” Id., at 12-13. The police arrived within four minutes of the 911 call and observed McCottry’s shaken state, the “fresh injuries on her forearm and her face,” and her “frantic efforts to gather her belongings and her children so that they could leave the residence.” 154 Wash. 2d 291, 296, 111 P. 3d 844, 847 (2005) (en banc). The State charged Davis with felony violation of a domestic no-contact order. “The State’s only witnesses were the two police officers who responded to the 911 call. Both officers testified that McCottry exhibited injuries that appeared to be recent, but neither officer could testify as to the cause of the injuries.” Ibid. McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear. Over Davis’s objection, based on the Confrontation Clause of the Sixth Amendment, the trial court admitted the recording of her exchange with the 911 operator, and the jury convicted him. The Washington Court of Appeals affirmed, 116 Wash. App. 81, 64 P. 3d 661 (2003). The Supreme Court of Washington, with one dissenting justice, also affirmed, concluding that the portion of the 911 conversation in which McCottry identified Davis was not testimonial, and that if other portions of the conversation were testimonial, admitting them was harmless beyond a reasonable doubt. 154 Wash. 2d, at 305, 111 P. 3d, at 851. We granted certiorari. 546 U. S. 975 (2005). B In Hammon v. Indiana, No. 05-5705, police responded late on the night of February 26, 2003, to a “reported domestic disturbance” at the home of Hershel and Amy Hammon. 829 N. E. 2d 444, 446 (Ind. 2005). They found Amy alone on the front porch, appearing “ ‘somewhat frightened,’ ” but she told them that “ ‘nothing was the matter,’ ” id., at 446, 447. She gave them permission to enter the house, where an officer saw “a gas heating unit in the corner of the living room” that had “flames coming out of the . . . partial glass front. There were pieces of glass on the ground in front of it and there was flame emitting from the front of the heating unit.” App. in No. 05-5705, p. 16. Hershel, meanwhile, was in the kitchen. He told the police “that he and his wife had ‘been in an argument’ but ‘everything was fine now’ and the argument ‘never became physical.’” 829 N. E. 2d, at 447. By this point Amy had come back inside. One of the officers remained with Hershel; the other went to the living room to talk with Amy, and “again asked [her] what had occurred.” Ibid.; App. in No. 05-5705, at 17, 32. Hershel made several attempts to participate in Amy’s conversation with the police, see id., at 32, but was rebuffed. The officer later testified that Hershel “became angry when I insisted that [he] stay separated from Mrs. Hammon so that we can investigate what had happened.” Id., at 34. After hearing Amy’s account, the officer “had her fill out and sign a battery affidavit.” Id., at 18. Amy handwrote the following: “Broke our Furnace & shoved me down on the floor into the broken glass. Hit me in the chest and threw me down. Broke our lamps & phone. Tore up my van where I couldn’t leave the house. Attacked my daughter.” Id., at 2. The State charged Hershel with domestic battery and with violating his probation. Amy was subpoenaed, but she did not appear at his subsequent bench trial. The State called the officer who had questioned Amy, and asked him to recount what Amy told him and to authenticate the affidavit. Hershel’s counsel repeatedly objected to the admission of this evidence. See id., at 11, 12, 13, 17, 19, 20, 21. At one point, after hearing the prosecutor defend the affidavit because it was made “under oath,” defense counsel said, “That doesn’t give us the opportunity to cross examine [the] person who allegedly drafted it. Makes me mad.” Id., at 19. Nonetheless, the trial court admitted the affidavit as a “present sense impression,” id., at 20, and Amy’s statements as “excited utterances” that “are expressly permitted in these kinds of cases even if the declarant is not available to testify,” id., at 40. The officer thus testified that Amy “informed me that she and Hershel had been in an argument. That he became irrate [sic] over the fact of their daughter going to a boyfriend’s house. The argument became ... physical after being verbal and she informed me that Mr. Hammon, during the verbal part of the argument was breaking things in the living room and I believe she stated he broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater. “She informed me Mr. Hammon had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe.” Id., at 17-18. The trial judge found Hershel guilty on both charges, id., at 40, and the Indiana Court of Appeals affirmed in relevant part, 809 N. E. 2d 945 (2004). The Indiana Supreme Court also affirmed, concluding that Amy’s statement was admissible for state-law purposes as an excited utterance, 829 N. E. 2d, at 449; that “a ‘testimonial’ statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings,” where “the motivations of the questioner and declarant are the central concerns,” id., at 456, 457; and that Amy’s oral statement was not “testimonial” under these standards, id., at 458. It also concluded that, although the affidavit was testimonial and thus wrongly admitted, it was harmless beyond a reasonable doubt, largely because the trial was to the bench. Id., at 458-459. We granted certiorari. 546 U. S. 975 (2005). II The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 53-54 (2004), we held that this provision bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase “testimonial statements.” Only statements of this sort cause the declarant to be a “witness” within the meaning of the Confrontation Clause. See id., at 51. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Our opinion in Crawford set forth “[v]arious formulations” of the core class of ‘“testimoniar” statements, ibid., but found it unnecessary to endorse any of them, because “some statements qualify under any definition,” id., at 52. Among those, we said, were “[statements taken by police officers in the course of interrogations,” ibid.; see also id., at 53. The questioning that generated the deponent’s statement in Crawford — which was made and recorded while she was in police custody, after having been given Miranda warnings as a possible suspect herself — “qualifies under any conceivable definition” of an “ ‘interrogation,’ ” 541 U. S., at 53, n. 4. We therefore did not define that term, except to say that “[w]e use [it] ... in its colloquial, rather than any technical legal, sense,” and that “one can imagine various definitions . . . , and we need not select among them in this case.” Ibid. The character of the statements in the present cases is not as clear, and these eases require us to determine more precisely which police interrogations produce testimony. Without attempting to produce an exhaustive classification of all conceivable statements — or even all conceivable statements in response to police interrogation — as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. III A In Crawford, it sufficed for resolution of the case before us to determine that “even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.” Id., at 53. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by “interrogations.” The Davis ease today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call are an interrogation in one sense, but not in a sense that “qualifies under any conceivable definition.” We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies. The answer to the first question was suggested in Crawford, even if not explicitly held: “The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to ‘witnesses’ against the accused — in other words, those who ‘bear testimony.’ 1 N. Webster, An American Dictionary of the English Language (1828). ‘Testimony,’ in turn, is typically ‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” 541 U. S., at 51. A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its “core,” but its perimeter. We are not aware of any early American case invoking the Confrontation Clause or the common-law right to confrontation that did not clearly involve testimony as thus defined. Well into the 20th century, our own Confrontation Clause jurisprudence was carefully applied only in the testimonial context. See, e. g., Reynolds v. United States, 98 U. S. 145, 158 (1879) (testimony at prior trial was subject to the Confrontation Clause, but petitioner had forfeited that right by procuring witness’s absence); Mattox v. United States, 156 U. S. 237, 240-244 (1895) (prior trial testimony of deceased witnesses admitted because subject to cross-examination); Kirby v. United States, 174 U. S. 47, 55-56 (1899) (guilty pleas and jury conviction of others could not be admitted to show that property defendant received from them was stolen); Motes v. United States, 178 U. S. 458, 467, 470-471 (1900) (written deposition subject to cross-examination was not admissible because witness was available); Dowdell v. United States, 221 U. S. 325, 330-331 (1911) (facts regarding conduct of prior trial certified to by the judge, the clerk of court, and the official reporter did not relate to defendants’ guilt or innocence and hence were not statements of “witnesses” under the Confrontation Clause). Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U. S. 56 (1980), never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford, 541 U. S., at 57-59 (citing cases), with one arguable exception, see id., at 58, n. 8 (discussing White v. Illinois, 502 U. S. 346 (1992)). Where our cases did dispense with those requirements — even under the Roberts approach — the statements at issue were clearly nontestimonial. See, e. g., Bourjaily v. United States, 483 U. S. 171, 181-184 (1987) (statements made unwittingly to a Government informant); Dutton v. Evans, 400 U. S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another). Most of the American cases applying the Confrontation Clause or its state constitutional or common-law counterparts involved testimonial statements of the most formal sort — sworn testimony in prior judicial proceedings or formal depositions under oath — which invites the argument that the scope of the Clause is limited to that very formal category. But the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions, see Crawford, supra, at 52, and n. 3. In any event, we do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition. Indeed, if there is one point for which no case — English or early American, state or federal — can be cited, that is it. The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. When we said in Crawford, supra, at 53, that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. It is, in the terms of the 1828 American dictionary quoted in Crawford, “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” 541 U. S., at 51. (The solemnity of even an oral declaration of relevant past fact to an investigating officer is well enough established by the severe consequences that can attend a deliberate falsehood. See, e. g., United States v. Stewart, 433 F. 3d 273, 288 (CA2 2006) (false statements made to federal investigators violate 18 U. S. C. § 1001); State v. Reed, 2005 WI 53, ¶ 30, 280 Wis. 2d 68, 85, 695 N. W. 2d 315, 323 (state criminal offense to “knowingly giv[e] false information to [an] officer with [the] intent to mislead the officer in the performance of his or her duty”).) A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to “establis[h] or prov[e]” some past fact, but to describe current circumstances requiring police assistance. The difference between the interrogation in Davis and the one in Crawford, is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than “describing] past events,” Lilly v. Virginia, 527 U. S. 116, 137 (1999) (plurality opinion). Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that Mc-Cottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry’s call was plainly a call for help against a bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively^ was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. See, e. g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 186 (2004). And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe. We conclude from all this that the circumstances of McCottry’s interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting as a witness; she was not testifying. What she said was not “a weaker substitute for live testimony” at trial, United States v. Inadi, 475 U. S. 387, 394 (1986), like Lord Cobham’s statements in Raleigh’s Case, 2 How. St. Tr. 1 (1603), or Jane Dingier’s ex parte statements against her husband in King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), or Sylvia Crawford’s statement in Crawford. In each of those cases, the ex parte actors and the evidentiary products of the ex parte communication aligned perfectly with their courtroom analogues. McCottry’s emergency statement does not. No “witness” goes into court to proclaim an emergency and seek help. Davis seeks to cast McCottry in the unlikely role of a witness by pointing to English cases. None of them involves statements made during an ongoing emergency. In King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), for example, a young rape victim, “immediately on her coming home, told all the circumstances of the injury” to her mother. Id., at 200, 168 Eng. Rep., at 202. The case would be helpful to Davis if the relevant statement had been the girl’s screams for aid as she was being chased by her assailant. But by the time the victim got home, her story was an account of past events. This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, “evolve into testimonial statements,” 829 N. E. 2d, at 457, once that purpose has been achieved. In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottry’s statements were testimonial, not unlike the “structured police questioning” that occurred in Crawford, 541 U. S., at 53, n. 4. This presents no great problem. Just as, for Fifth Amendment purposes, “police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,” New York v. Quarles, 467 U. S. 649, 658-659 (1984), trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence. Davis’s jury did not hear the complete 911 call, although it may well have heard some testimonial portions. We were asked to classify only McCottry’s early statements identifying Davis as her assailant, and we agree with the Washington Supreme Court that they were not testimonial. That court also concluded that, even if later parts of the call were testimonial, their admission was harmless beyond a reasonable doubt. Davis does not challenge that holding, and we therefore assume it to be correct. B Determining the testimonial or nontestimonial character of the statements that were the product of the interrogation in Hammon is a much easier task, since they were not much different from the statements we found to be testimonial in Crawford. It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct — as, indeed, the testifying officer expressly acknowledged, App. in No. 05-5705, at 25, 32, 34. There was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything, id., at 25. When the officers first arrived, Amy told them that things were fine, id., at 14, and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) “what is happening,” but rather “what happened.” Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime — which is, of course, precisely what the officer should have done. It is true that the Crawford interrogation was more formal. It followed a Miranda warning, was tape-recorded, and took place at the station house, see 541 U. S., at 53, n. 4. While these features certainly strengthened the statements’ testimonial aspect — made it more objectively apparent, that is, that the purpose of the exercise was to nail down the truth about past criminal events — none was essential to the point. It was formal enough that Amy’s interrogation was conducted in a separate room, away from her husband (who tried to intervene), with the officer receiving her replies for use in his “investigation].” App. in No. 05-5705, at 34. What we called the “striking resemblance” of the Crawford statement to civil-law ex parte examinations, 541 U. S., at 52, is shared by Amy’s statement here. Both declarants were actively separated from the defendant — officers forcibly prevented Hershel from participating in the interrogation. Both statements deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And both took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial. Both Indiana and the United States as amicus curiae argue that this case should be resolved much like Davis. For the reasons we find the comparison to Crawford compelling, we find the comparison to Davis unpersuasive. The statements in Davis were taken when McCottry was alone, not only unprotected by police (as Amy Hammon was protected), but apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past. McCottry’s present-tense statements showed immediacy; Amy’s narrative of past events was delivered at some remove in time from the danger she described. And after Amy answered the officer’s questions, he had her execute an affidavit, in order, he testified, “[t]o establish events that have occurred previously.” App. in No. 05-5705, at 18. Although we necessarily reject the Indiana Supreme Court’s implication that virtually any “initial inquiries” at the crime scene will not be testimonial, see 829 N. E. 2d, at 453, 457, we do not hold the opposite — that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that “[ojfficers called to investigate .. . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, 542 U. S., at 186. Such exigencies may often mean that “initial inquiries” produce nontestimonial statements. But in cases like this one, where Amy’s statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were “initial inquiries” is immaterial. Cf. Crawford, supra, at 52, n. 3. IV Respondents in both cases, joined by a number of their amici, contend that the nature of the offenses charged in these two cases — domestic violence — requires greater flexibility in the use of testimonial evidence. This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free. Cf. Kyllo v. United States, 533 U. S. 27 (2001) (suppressing evidence from an illegal search). But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that “the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.” 541 U. S., at 62 (citing Reynolds, 98 U. S., at 158-159). That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. We take no position on the standards necessary to demonstrate such forfeiture, but federal courts using Federal Rule of Evidence 804(b)(6), which codifies the forfeiture doctrine, have generally held the Government to the preponderance-of-the-evidence standard, see, e.g., United States v. Scott, 284 F. 3d 758, 762 (CA7 2002). State courts tend to follow the same practice, see, e. g., Commonwealth v. Edwards, 444 Mass. 526, 542, 830 N. E. 2d 158, 172 (2005). Moreover, if a hearing on forfeiture is required, Edwards, for instance, observed that “hearsay evidence, including the unavailable witness’s out-of-court statements, may be considered.” Id., at 545, 8 Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_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 PUBLICKER INDUSTRIES, Inc. v. TUGBOAT NEPTUNE CO. et al. No. 9679. United States Court of Appeals Third Circuit. Argued Nov. 15, 1948. Decided Dec. 1, 1948. Otto Kraus, Jr., of Philadelphia, Pa. (Howard T. Long and Howard M. Long, both of Philadelphia, Pa., on the brief), for appellants. S. B. Fortenbaugh, Jr., of Philadelphia, Pa. (Benjamin F. Stahl, Jr., and Clark, Brown, McCown, Fortenbaugh & Young, all of Philadelphia, Pa., on the brief), for appellee. Before MARIS, GOODRICH and O’CONNELL, Circuit Judges. MARIS, Circuit Judge. This is an appeal by Tugboat Neptune Company and Tugboat Triton Company, the owners of the tugboats Neptune and Triton respectively, from a judgment of the United States District Court for the Eastern District of Pennsylvania awarding damages against them and in favor of Pu-b.licker Industries, Inc., the owner of Pier 103 South Wharves in Philadelphia for injuries to the pier which resulted from the undocking of .the Steam-ship William J. Worth. The case has been here before and the facts are stated in our previous opinion. Publicker Commercial Alcohol Co. v. Independent Towing Co., 1948, 165 F.2d 1002. The district court had originally entered judgment in favor of the plaintiff against American-Hawaiian Steamship Company, the agent for the United States as owner of the William J. Worth, and had dismissed the complaint as to the two tugboat companies. We reversed the judgment as to. American-Iiawaiian Steamship Company and vacated the judgments of dismissal against the two tugboat companies. Our mandate directed that the district court redetermine the liability of these two companies in accordance with the law of Pennsylvania, the action being a civil one brought under the diversity jurisdiction. Following the receipt of our mandate the district court held a further hearing. The court found a-s a fact that the capta-ins of the tugboats Neptune and Tri-ton were aware of the excessive draft of the Worth, the depth of water in the slip adjacent to Pier 98, the fact that there was a bar or -hump in the center thereof and the condition of the tide and the wind. The court further found that the two captains realized the prospective difficulty in the moving of the vessel in the face of such conditions but undertook to accomplish the operation in spite of the known risk although each tugboat had radio communication facilities which the captains could have used to request the assistance of additional tugs. The court also found that Captain Marvel of the Neptune went on board the Worth to act as the undocking pilot and that, except for the original casting off, Captain Marvel gave all orders during the undocking operation and was in general charge of that operation. Upon the facts which it found the -court concluded as a matter of law that the-damage to Pier 103 was caused by the fault and negligence of the two tugboat companies in that their agents, the captains of the tugboats, did not secure additional towing services required to move the Worth safely from its dock but attempted to undock the vessel with inadequate towing facilities under circumstances which led them to believe that such undocking would be difficult and hazardous. The judgment in favor of the plaintiff and again-st the defendant tugboat companies, which is the subject of this appeal, was thereupon entered by the court. The appellants contend that the court erred in finding the captains of the tugboats guilty of negligence and that in any event the only negligence was that of Captain Marvel of the Neptune in the way in which he directed the undocking operation from the bridge of the Worth and that since during -this period he must be regarded as the employee of the Worth and not of the tugboat companies the latter should not be held liable for hi-s acts. We find both contentions to be wholly without merit. As to the first there is ample evidence to -support the finding of the district court that before they started the captains of the two -tugboats were aware of the hazards of the operation which they were about to undertake and of the inadequacy of their tugboats to accomplish it with safety and that nevertheless they proceeded to undertake to do what they knew could not be done with -safety. Both Captain Marvel of the Neptune and Captain Cooper of -the Triton were thus rightly found to have been guilty of negligence in proceeding with the undocking operation 'before ever the former boarded the Worth and undertook to direct that operation. This follows both under the law of Pennsylvania and the admiralty law. Our conclusion as 'to the tugboat companies’ negligence, through their captains, prior to the commencement of the undocking operation is enough to justify the judgment against them regardless oí the merits of their second point which relates to Captain Marvel’s alleged negligence in conducting that operation. Nonetheless we have considered the latter and find it also to be without merit. The appellants’ contention is that Captain Marvel was loaned by the Tugboat Neptune Company to the Worth during the time that he was directing the undocking operation from the bridge of the latter vessel and accordingly became during that time the emplbyee of that vessel and its ownSr. Asserting this to have been the fact the appellants contend that under the law of Pennsylvania the Tugboat Neptune Company during that time was not responsible for the acts of its captain thus loaned to the United States, the owner of the Worth, and that his negligence during the period in question was accordingly attributable only to the Worth and its owner. We do not question the rule of Pennsylvania law which the appellants invoke with respect to the non-liability of an employer for negligent acts of his employee committed while the latter has been loaned to another employer but we find the rule not to be applicable here. For in this case the court was justified by the evidence in finding, as it did, that Captain Marvel of the Neptune directed the undocking operation, giving all the orders involved except •for the original casting off of the Worth, and that he and not 'Captain Ryder of the Worth was in general charge of the undocking operation. It thus appears that Captain Marvel was not loaned by the Tugboat Neptune Company to the Worth and did not come under authority of Captain Ryder of that vessel or become its employee for the time. On the contrary it is settled that under the circumstances present here the relation of the two tugboat companies to the Worth and its owner was that of independent contractors. The appellants, however, call attention to a towage agreement which subsisted at the time between the United States, the owner of the Worth, and Independent Towing Company, a corporation.associated with the two tugboat companies by virtue of the fact that the entire capital stock of all three •corporations was owned by a common parent company. The Independent Towing Company appears to have acted as agent to secure employment for the tugboats of the two tugboat companies and its towage contract with the United States contained the standard form of pilotage clause, as follows: “Whenever the Master or other officer of any tug or any licensed pilot goes on board a vessel to assist her. movement or handling, he becomes and continues to be solely the servant of said vessel and her owners in respect of all acts done by him and all orders given by him to any tugs engaged or to said vessel or otherwise in., the movement or handling of said vessel; and none of the tugs or their owners, agents or charterers shall be responsible or liable for any claims or any damages caused by or resulting from such acts or orders.” The appellants assert that by virtue of this pilotage clause they must be absolved from all liability for the negligent acts of Captain Marvel committed while he was on board the Worth. We cannot agree. For even if we assume that the tugboat companies were entitled to the benefit of the pilotage clause in the contract between their agent and the United States the fact remains that the clause is not binding upon the plaintiff in this case who was not a party to the towage contract. It has been so held in the admiralty law. Since the matter is one involving the construction and effect of a maritime contract the courts of Pennsylvania would adopt and apply the maritime law with respect to it even though the tort here sued on is not a maritime tort. Accordingly, while it was proper for the court to consider the pilotage clause in determining the actual fact as to whether Captain Marvel was in control of the undocking operation or was acting under the orders of Captain Ryder, the clause was not conclusive upon that point and it was, therefore, not error for the court from the other evidence in the case to find the actual fact to be that Captain Marvel acted throughout as employee and agent of the tugboat companies. The judgment of the district court will be affirmed. Hays v. Paul, 1866, 51 Pa. 134, 142, 88 Am.Dec. 569. The Syracuse, 1870, 12 Wall. 167, 79 U.S. 167, 20 L.Ed. 382; The Margaret, 1876, 94 U.S. 494, 24 L.Ed. 146; Vessel Owners’ Towing Co. v. Wilson, 7 Cir., 1894, 63 F. 626; American S. African Line v. Sheridan & Co., D.C.E.D.Pa. 1935, 1930 A.M.C. 287. The district court did not find Captain Marvel negligent in his direction of the operation once it had begun. On the contrary Captain Ryder of the 'Worth testified that, he approved Captain Marvel’s orders given on the bridge of the Worth find that if he had not approved them he could have rescinded them and taken the ship himself. Sturgis v. Boyer, 1860, 24 How. 110, 65 U.S. 110, 16 L.Ed. 591; The Dorset, 4 Cir., 1919, 260 F. 82; Calzavaro v. Planet S. S. Corporation, 4 Cir., 1929, 31 F.2d 885; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 1933, 261 N.Y. 455, 185 N.E. 698. The Niels R. Finsen, D.C.S.D.N.Y. 1931, 52 F.2d .795; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 1933, 261 N.Y. 455, 185 N.E. 698. Knapp, Stout & Company v. McCaffrey, 1900, 177 U.S. 638, 643, 20 S.Ct. 824, 44 L.Ed. 921; Grant Smith-Porter Co. v. Rohde, 1922, 257 U.S. 469, 476, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Moran Towing & Transportation Co. v. Navigazione Libera Triestina, S. A., 2 Cir., 1937, 92 F.2d 37, 38. Zubik v. Bethlehem Steel Co., 1941, 144 Pa.Super. 13, 18 A.2d 441. Cleveland Terminal & Valley R. v. Cleveland Steamship Co., 1908, 208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508, 13 Ann. Cas. 1215. 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:
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. CHAFFIN v. STYNCHCOMBE, SHERIFF No. 71-6732. Argued February 22, 1973 Decided May 21, 1973 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting statement, post, p. 35. Stewart, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 35. Marshall, J., filed a dissenting opinion, post, p. 38. Glenn Zell, by appointment of the Court, 409 U. S. 1123, argued the cause and filed a brief for petitioner. Richard E. Hicks argued the cause for respondent. On the brief were Lewis R. Slaton, Joel M. Feldman, and Carter Goode. David M. Pack, Attorney General, pro se, and Bart C. Durham, Assistant Attorney General, filed a brief for the Attorney General of Tennessee as amicus curiae. Mr. Justice Powell delivered the opinion of the Court. A writ of certiorari was granted in this case to consider whether, in those States that entrust the sentencing responsibility to the jury, the Due Process Clause of the Fourteenth Amendment bars the jury from rendering higher sentences on retrials following reversals of prior convictions. In North Carolina v. Pearce, 395 U. S. 711 (1969), this Court established limitations on the imposition of higher sentences by judges in similar circumstances. While we reaffirm the underlying rationale of Pearce that vindictiveness against the accused for having successfully overturned his conviction has no place in the resentencing process, whether by judge or jury, we hold today that due process of law does not require extension of Pearce-type restrictions to jury sentencing. I Early in 1969, petitioner was tried by a jury in a Georgia state criminal court on a charge of robbery by open force or violence, a capital offense at that time. The jury, which had been instructed that it was empowered to impose a sentence of death, life imprisonment, or a term of years, found petitioner guilty and sentenced him to 15 years in prison. He appealed to the Georgia Supreme Court, claiming primarily that the trial judge had given an erroneous jury instruction as to the defendant’s burden of proving an alibi defense. His claim was rejected and his conviction was affirmed. 225 Ga. 602, 170 S. E. 2d 426 (1969). Thereafter, he renewed that claim in a petition for a writ of habeas corpus to the United States District Court for the Northern District of Georgia. The District Court found petitioner’s contention meritorious, granted the writ, and ordered him returned to the state court for retrial. Upon retrial before a different judge and a new jury, petitioner was again found guilty. A comparison of the trial transcripts in the two cases indicates that the trials were similar in most respects. The case was prosecuted on both occasions by the same State’s attorney and the same prosecution witnesses testified to the facts surrounding the alleged robbery. Petitioner, however, was represented by new counsel and, in addition to repeating his alibi defense, he interposed an insanity defense not offered at the former trial. New witnesses were called to testify for both sides on this issue. Also, while petitioner took the stand and made an unsworn statement in each case, his statement at the latter trial was longer and contained autobiographical information not presented to the former jury, including an emotional discussion of his family background, an account of his religious affiliation, job history, previous physical injuries, and a rendition of several religious poems and songs he had written. The jury instructions on the permissible range of punishment were the same at each trial and the prosecutor at the second trial urged the jury to sentence petitioner to death, as he had in his closing argument at the prior trial. This time, however, the jury returned a sentence of life imprisonment. The parties agree that the jury was not aware of the length of the sentence meted out by the former jury. And, although the jury was informed by one of petitioner’s own witnesses that he had been tried previously on the same charge, the jury was not told that petitioner had been convicted and that his conviction had been overturned on collateral attack. Claiming primarily that it was improper for the State to allow the jury to render a harsher sentence on retrial, petitioner appealed again to the State Supreme Court. That court affirmed the lower court’s judgment and refused to alter petitioner’s sentence. 227 Ga. 327, 180 S. E. 2d 741 (1971). He then filed his second application for habeas relief in the Federal District Court, arguing that the higher sentence was invalid under Pearce. The District Court disagreed and declined to issue the writ. On appeal to the United States Court of Appeals for the Fifth Circuit, the District Court’s judgment was affirmed in an opinion holding that the higher sentence received in this case was not violative of due process. 455 F. 2d 640 (1972). Because two other federal courts of appeals had held to the contrary that Pearce restrictions are applicable, we granted certiorari to resolve the conflict. 409 U. S. 912 (1972). II Georgia is one of a small number of States that entrust the sentencing function in felony cases to the jury rather than to the judge. While much has been written on the questions whether jury sentencing is desirable and whether it is compatible with the modern philosophy of criminal sentencing that “the punishment should fit the offender and not merely the crime,” Williams v. New York, 337 U. S. 241, 247 (1949), this Court has never expressed doubt about the constitutionality of that practice. See McGautha v. California, 402 U. S. 183, 196— 208 (1971); Witherspoon v. Illinois, 391 U. S. 510, 519-520 and n. 15 (1968); Spencer v. Texas, 385 U. S. 554, 560 (1967); Giaccio v. Pennsylvania, 382 U. S. 399, 405 n. 8 (1966). The States have always enjoyed “wide leeway in dividing responsibility between judge and jury in criminal cases.” Spencer v. Texas, supra, at 560. If a State concludes that jury sentencing is preferable because, for instance, it guarantees the maintenance of a “link between contemporary community values and the penal system,” Witherspoon v. Illinois, supra, at 519 n. 15, or because “juries are more likely to act with compassion, fairness, and understanding than the judge,” Stubbs, Jury Sentencing in Georgia — Time For a Change?, 5 Ga. St. B. J. 421, 426 (1969), nothing in the Due Process Clause of the Fourteenth Amendment intrudes upon that choice. Petitioner does not question this proposition. Instead, he contends that, although the jury may set the sentence, its range of discretion must be subjected to limitations similar to those imposed when the sentencing function on retrial is performed by the judge. While primary reliance, therefore, is placed on this Court’s recent opinion in Pearce, petitioner asserts three distinct due process claims: (A) higher sentences on retrial violate the double jeopardy provision of the Fifth Amendment, made binding on the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784, 793-796 (1969); (B) higher sentences occasioned by vindictiveness on the part of the sentencing authority violate traditional concepts of fairness in the criminal process; and (C) the possibility of a higher sentence, even absent a reasonable fear of vindictiveness, has an impermissible “chilling effect” on the exercise of the rights to appeal and to attack collaterally a conviction. Each claim will be considered separately. A The question presented in Pearce, arising in the context of judicial resentencing, was framed as follows: “When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?” 395 U. S., at 713. In addressing first the double jeopardy claim, the Court recognized the long-accepted power of a State “to retry a defendant who has succeeded in getting his first conviction set aside,” id., at 720 (emphasis in original) ; United States v. Toteo, 377 U. S. 463 (1964), and, as a “corollary” of that power, “to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.” 395 U. S., at 720. The foundational precedent from which the Court’s view of resentencing discretion derives is Stroud v. United States, 251 U. S. 15 (1919), a case which, because it involved jury resentencing, is central to the double jeopardy claim in the present case. Robert Stroud, popularly known as “The Birdman of Alcatraz,” was indicted for the murder of a federal prison guard at Leavenworth, Kansas. After being convicted and sentenced by a jury to life imprisonment, he won a retrial upon a confession of error by the Solicitor General. His retrial resulted in another verdict of guilty of murder in the first degree and a sentence, again imposed by the jury, of death. On a direct appeal, a unanimous Court held that despite the harsher sentence on retrial Stroud had not been “placed in second jeopardy within the meaning of the Constitution.” Id., at 18. The Court in Pearce reaffirmed that decision, emphasizing that it now constitutes a “ ‘well-established part of our constitutional jurisprudence’ ” which rests on the “premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean.” 395 U. S., at 720-721. Petitioner, relying on the views of Mr. Justice Douglas and Mr. Justice Harlan expressed in their separate opinions in Pearce, id., at 726, 744, urges the Court to overrule Stroud, a step which, for the reasons stated in Pearce, we again decline to take. B Petitioner’s second contention focuses on the problem of vindictiveness. In Pearce it was held that vindictiveness, manifesting itself in the form of increased sentences upon conviction after retrial, can have no place in the resentencing process. Under our constitutional system it would be impermissible for the sentencing authority to mete out higher sentences on retrial as punishment for those who successfully exercised their right to appeal, or to attack collaterally their conviction. Those actually subjected to harsher resentencing as a consequence of such motivation would be most directly injured, but the wrong would extend as well to those who elect not to exercise their rights of appeal because of a legitimate fear of retaliation. Thus, the Court held that fundamental notions of fairness embodied within the concept of due process required that convicted defendants be “freed of apprehension of such a retaliatory motivation.” Id., at 725. To that end, the Court concluded that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” Id., at 726. And, as a further prophylaxis, it was stated that those reasons must be based upon “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Ibid. Petitioner seeks the extension of the Pearce rationale to jury sentencing. That decision, as we have said, was premised on the apparent need to guard against vindictiveness in the resentencing process. Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process. The possibility of a higher sentence was recognized and accepted as a legitimate concomitant of the retrial process. Id., at 723. Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness. In Moon v. Maryland, 398 U. S. 319 (1970), a case granted with a view to determining the retroactivity of Pearce, the Court ordered the case dismissed as improvidently granted when it became clear that there was no claim there that the higher sentence received on retrial was a product of vindictiveness on the part of the sentencing judge. Because counsel for the reconvicted defendant eschewed that contention, the Court held that “there is no claim in this case that the due process standard of Pearce was violated.” Id., at 320. A similar focus on actual vindictiveness is reflected in the decision last Term in Colten v. Kentucky, 407 U. S. 104 (1972). The question in that case was whether the Pearce principle applied to bar the imposition of a higher sentence after a de novo trial in those jurisdictions that employ a two-tier system of trial courts. While noting that “[i]t may often be that the [de novo “appeal” court] will impose a punishment more severe than that received from the inferior court,” id., at 117, we were shown nothing to persuade us that “the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement.” Id., at 116 (emphasis supplied). In short, the Due Process Clause was not violated because the “possibility of vindictiveness” was not found to inhere in the two-tier system. Ibid. This case, then, is controlled by the inquiry into possible vindictiveness counseled by Pearce, Moon, and Colten. The potential for such abuse of the sentencing process by the jury is, we think, de minimis in a properly controlled retrial. The first prerequisite for the imposition of a retaliatory penalty is knowledge of the prior sentence. It has been conceded in this case that the jury was not informed of the prior sentence. We have no reason to suspect that this is not customary in a properly tried jury case. It is more likely that the jury will be aware that there was a prior trial, but it does not follow from this that the jury will know whether that trial was on the same charge, or whether it resulted in a conviction or mistrial. Other distinguishing factors between jury and judicial sentencing further diminish the possibility of impropriety in jury sentencing. As was true in Colten, the second sentence is not meted out by the same judicial authority whose handling of the prior trial was sufficiently unacceptable to have required a reversal of the conviction. Thus, the jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication. Similarly, the jury is unlikely to be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals. In light of these considerations, and where improper and prejudicial information regarding the prior sentence is withheld, there is no basis for holding that jury re-sentencing poses any real threat of vindictiveness. c Petitioner’s final argument is that harsher sentences on retrial are impermissible because, irrespective of their causes and even conceding that vindictiveness plays no discernible role, they have a “chilling effect” on the convicted defendant’s exercise of his right to challenge his first conviction either by direct appeal or collateral attack. What we have said as to Pearce demonstrates that it provides no foundation for this claim. To the contrary, the Court there intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal. Colten likewise represents a view incompatible with petitioner’s contention. Petitioner relies instead on United States v. Jackson, 390 U. S. 570 (1968), in which the Court held unconstitutional the capital punishment provision of the federal antikidnaping law. By limiting to the jury the power to impose a death sentence, the statute “discouraged” the exercise by the accused of his rights to trial by jury and to plead not guilty. Id., at 581. The Court found that the interest of the Government in having the jury retain the power to render the death penalty could be realized without this imposition on the rights of the accused. Therefore, the sentencing structure of the statute was struck down because it “unnecessarily” and “needlessly chill[ed] the exercise of basic constitutional rights.” Id., at 582. Jackson did not hold, as subsequent decisions have made clear, that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional, rights. In Brady v. United States, 397 U. S. 742 (1970), Parker v. North Carolina, 397 U. S. 790 (1970), and North Carolina v. Alford, 400 U. S. 25 (1970), defendants entered pleas of guilty in order to avoid the potential imposition of death sentences by a jury. Each was dissuaded from exercising his rights to a jury trial and to plead not guilty. Each was, in that sense, “discouraged” from asserting his rights, but the Court found no constitutional infirmity despite the claim in each case that Jackson compelled a contrary result. Brady is particularly instructive. The Court there canvassed several common plea-bargaining circumstances in which the accused is confronted with the “certainty or probability” that, if he determines to exercise his right to plead innocent and to demand a jury trial, he will receive a higher sentence than would have followed a waiver of those rights. 397 U. S., at 751. Although every such circumstance has a discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices was upheld as an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas. Mr. Justice Harlan’s opinion for the Court in Crampton v. Ohio, a companion case to McGautha v. California, 402 U. S. 183 (1971), deals at some length with the constitutional problems surrounding the imposition of difficult choices in the criminal process and is of particular relevance since it arises in the context of jury sentencing. Petitioner Crampton attacked the Ohio system of conducting capital trials. Ohio allowed the jury to determine guilt and punishment in a single trial and a single verdict, and Crampton complained that due process required a bifurcated trial because in a single trial he could not argue his case for mitigation of punishment to the jury without forgoing his right to remain silent on the issue of guilt. Id., at 220-221. Thus, the free exercise of his Fifth Amendment right to remain silent was “chilled” by the prospect that a harsher jury sentence might ensue. The Court did not agree, however, that the burden imposed on that right was impermissible. In terms pertinent to the case before us today, the Court in Crampton stated: “The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments’ as to which course to follow. . . . Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” Id., at 213. Recognizing that the inquiry, by its very nature, must be made on a case-by-case basis, the Court indicated that the “threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.” Ibid. The choice imposed by the Ohio system was similar to the choice frequently faced by a criminal defendant in deciding whether to assert his right to remain silent. And the fact that the consequence of silence might be a harsher sentence was not regarded as a distinguishing factor. These cases, we think, erase any question whether Jackson might call for abrogation of Georgia’s unrestricted jury-resentencing process. Jury sentencing, based on each jury’s assessment of the evidence it hears and appraisal of the demeanor and character of the accused, is a legitimate practice. Supra, at 21-22. Just as in the guilty-plea cases and Crampton, an incidental consequence of that practice is that it may require the accused to choose whether to accept the risk of a higher sentence or to waive his rights. We see nothing in the right to appeal or the right to attack collaterally a conviction, even where constitutional errors are claimed, which elevates those rights above the rights to jury trial and to remain silent. Petitioner was not himself “chilled” in the exercise of his right to appeal by the possibility of a higher sentence on retrial and we doubt that the “chill factor” will often be a deterrent of any significance. Unlike the guilty-plea situation and, to a lesser extent, the nonbifurcated capital trial, the likelihood of actually receiving a harsher sentence is quite remote at the time a convicted defendant begins to weigh the question whether he will appeal. Several contingencies must coalesce. First, his appeal must succeed. Second, it must result in an order remanding the case for retrial rather than dismissing outright. Third, the prosecutor must again make the decision to prosecute and the accused must again select trial by jury rather than securing a bench trial or negotiating a plea. Finally, the jury must again convict and then ultimately the jury or the judge must arrive at a harsher sentence in circumstances devoid of a genuine likelihood of vindictiveness. While it may not be wholly unrealistic for a convicted defendant to anticipate the occurrence of each of these events, especially in the infrequent case in which his claim for reversal is strong and his first sentence was unusually low, we cannot agree with petitioner that such speculative prospects interfere with the right to make a free choice whether to appeal. Ill Guided by the precedents of this Court, these are the conclusions we reach. The rendition of a higher sentence by a jury upon retrial does not violate the Double Jeopardy Clause. Nor does such a sentence offend the Due Process Clause so long as the jury is not informed of the prior sentence and the second sentence is not otherwise shown to be a product of vindictiveness. The choice occasioned by the possibility of a harsher sentence, even in the case in which the choice may in fact be “difficult,” does not place an impermissible burden on the right of a criminal defendant to appeal or attack collaterally his conviction. Affirmed. Petitioner was indicted under a statute that provided for the following range of punishments: “Robbery by open force or violence shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment in the penitentiary for life: Provided, however, the jury in all cases may recommend that the defendant be imprisoned in the penitentiary for not less than four years nor longer than 20 years, in the discretion of the court.” Ga. Code Ann. §26-2502 (1935), replaced by Ga. Code Ann. §26-1902 (1972). For a detailed description of the unique unsworn-statement practice in Georgia see Ferguson v. Georgia, 365 U. S. 570 (1961). During oral argument in this Court, counsel disagreed as to whether the prosecutor asked for the death penalty at the first trial. Tr. of Oral Arg. 13,26,32-33. At the Court’s request, counsel have filed post-argument affidavits on this question. Although the closing arguments themselves were not transcribed, the State prosecutor states that, while his memory is not entirely clear on the matter, his notes indicate, and his customary practice suggests, that he asked for the death sentence at both trials. Any remaining doubt is foreclosed by the affidavit filed by the attorney who represented petitioner during the first trial. He states unequivocally that the prosecutor argued “vigorously” in favor of imposition of the death penalty during the closing argument in that trial. During the second trial, petitioner’s counsel from the first trial was called to testify in petitioner’s behalf in support of his insanity defense. The substance of his testimonj'- was that he had an ample opportunity to study petitioner during the previous proceedings and that he was convinced that petitioner was suffering from a “mental defect.” He explained that, despite his own evaluation, he acquiesced in petitioner’s request that he not interpose an insanity defense at that time. At the most, then, the jury might have speculated as to whether petitioner’s retrial was the product of a mistrial or of a reversal of a prior conviction. Indeed, counsel for respondent indicated at oral argument that Georgia has many more retrials occasioned by mistrials than retrials following conviction reversals. Tr. of Oral Arg. 38. Compare the Fifth Circuit opinion in the instant case (455 F. 2d 640 (1972)), and Casias v. Beto, 459 F. 2d 54 (CA5 1972), with Levine v. Peyton, 444 F. 2d 525 (CA4 1971), and Pendergrass v. Neil, 456 F. 2d 469 (CA6 1972) (pet. for cert, pending, No. 71-1472). State court decisions on this question appear uniformly to hold Pearce inapplicable to jury resentencing. See cases discussed in Aplin, Sentence Increases on Retrial After North Carolina v. Pearce, 39 U. Cin. L. Rev. 427, 430-432 (1970). Georgia is one of 12 States that provide for jury sentencing in at least some categories of noncapital felony cases. Aplin, supra, n. 6, at 429 and n. 10. See, e. g., Stubbs, Jury Sentencing in Georgia — Time For a Change?, 5 Ga. St. B. J. 421 (1969); Note, Jury Sentencing in Virginia, 53 Va. L. Rev. 968 (1967); President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 145 (1967), and American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 1.1 (Approved Draft 1968) (both recommending the abolition of jury sentencing). See T. Gaddis, Birdman of Alcatraz (1955); R. Stroud, Diseases of Canaries (1935); R. Stroud, Digest on the Diseases of Birds (1939); Stroud v. United States, 283 F. 2d 137 (CA10 1960), cert. denied, 365 U. S. 864 (1961). Brief for Petitioner 9; Tr. of Oral Arg. 40-41. While there is no per se constitutional right to appeal, this Court has frequently held that once a State establishes an appellate forum it must assure access to it upon terms and conditions equally applicable and available to all. North Carolina v. Pearce, 395 U. S. 711, 724 (1969); Griffin v. Illinois, 351 U. S. 12 (1956); Douglas v. California, 372 U. S. 353 (1963); Rinaldi v. Yeager, 384 U. S. 305 (1966). See also Johnson v. Avery, 393 U. S. 483 (1969). See n. 4, supra, and accompanying text. See also n. 14, infra. Finally, depending upon the circumstances, it may be a desirable precaution for the trial judge to give the same instructions on the range of punishment at both trials and for the prosecutor to seek the same sentence in each case. See n. 3, supra. It has been suggested that higher sentences on retrial might result from vindictiveness on the part of the prosecutor. As punishment for a successful appeal, for instance, a prosecutor might recommend to the jury, and strenuously argue in favor of, a higher sentence than he previously sought. No such indication exists on this record since the prosecutor vigorously urged the imposition of the death penalty at the first trial. In any event, it would be erroneous to infer a vindictive motive merely from the severity of the sentence recommended by the prosecutor. Prosecutors often request more than they can reasonably expect to get, knowing that the jury will customarily arrive at some compromise sentence. The prosecutor’s strategy also might well vary from case to case depending on such factors as his assessment of the jury’s reaction to the proof and to the testimony of witnesses for and against the State. Given these practical considerations, and constrained by the bar against his informing the jury of the facts of prior conviction and sentence, the possibility that a harsher sentence will be obtained through prosecutorial malice seems remote. See Williams v. McMann, 436 F. 2d 103, 105-106 (CA2 1970). The State agreed at oral argument that it would be improper to inform the jury of the prior sentence and that Pearce might be applied in a case in which, either because of the highly publicized nature of the prior trial or because of some other irregularity, the jury was so informed. Tr. of Oral Arg. 39. We do not decide, however, whether improperly informing the jury would always require limitation of the sentence or whether such error might be cured by careful questioning of the jury venire or by a cautionary jury instruction. Because we have concluded that jury sentencing is not susceptible of the abuse that prompted the Pearce decision, we need not consider what remedy would be required if jury sentencing were subjected to Pearce-type restrictions. It is sufficient here to note that because the institution of jury sentencing is unlike judicial sentencing in a number of fundamental ways those restrictions may not be easily invoked. Normally, there would be no way for a jury to place on the record the reasons for its collective sentencing determination, and ordinarily the resentencing jury would not be informed of any conduct of the accused unless relevant to the question of guilt. See Note, supra, n. 8, at 978-980; Stubbs, supra, n. 8, at 428-429; LaFont, Assessment of Punishment — A Judge or Jury Function?, 38 Tex. L. Rev. 835, 837-842 (1960). These important differences would not be entirely overcome by requiring that jury trials be bifurcated as suggested by the Sixth Circuit in Pendergrass v. Neil, 456 F. 2d, at 472 (pet. for cert, pending, No. 71-1472). While some jury-sentencing States have adopted bifurcated jury trials, in which the jury assesses the punishment in a separate proceeding after a verdict of guilty has been rendered (see Aplin, supra, n. 6, at 430, 441-442; Ga. Code Ann. § 27-2534 (1972)), bifurcation alone would not wipe away the fundamental differences between jury and judicial sentencing. It may make little sense to supply the jury with information about the defendant’s conduct if the goal of jury sentencing is not necessarily to fit the punishment to the offender, and if the jury is, therefore, not concerned about matters considered pertinent to judicial sentencing. Petitioner and recent court of appeals cases suggest that an approximation of the Pearce limitations could be realized either by instructing the jury that it may return no verdict higher than the former sentence, or by empowering the judge to reduce the second sentence whenever it exceeds the former sentence. See Levine v. Peyton, 444 F. 2d 525 (CA4 1971); Pendergrass v. Neil, supra. Although these alternatives would provide an absolute protection from the possibility of vindictiveness, they would also interfere with ordinary sentencing discretion in a manner more intrusive than contemplated by Pearce. They would achieve, in the name of due process, the substance of the result we have declined to approve under the Double Jeopardy Clause. During oral argument, Tr. of .Oral Arg. 11 — 12, petitioner’s counsel seemed to concede the absence of an improper motivation on the jury’s part: “Question. Did the jury know anything about the first trial? “[Petitioner’s Counsel). No, they did not. “Question. Was there any possibility of vindictiveness? “[Petitioner’s Counsel). There is none, obviously not. “Question. Why not? “[Petitioner’s Counsel).-Because the jury did not know [about) the first sentence.” In Brady v. United States, 397 U. S. 742 (1970), the Court succinctly articulated the narrow holding in Jackson: “Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision ‘needlessly penalize[d] the assertion of a constitutional right.' ” Id., at 746 (emphasis supplied). The legitimacy of the practice of “plea bargaining,” as the Court noted last Term in Santobello v. New York, 404 U. S. 257 (1971), has not been doubted and where “properly administered” it is to be “encouraged” as an “essential” and “desirable” “component of the administration of justice.” Id., at 260-261. See also Brady v. United States, supra, at 751-753. The case was argued on the theory that the Ohio single proceeding created a “tension between constitutional rights,” 402 U. S., at 211, similar to that involved in Simmons v. United States, 390 U. S. 377 (1968). The Court declined to decide the case in those terms, 402 U. S., at 212-213, but focused instead on the extent to which the lack of a bifurcated proceeding created a burden on the exercise of the right to remain silent, or, stated differently, encouraged its waiver. Id., at 213-217. We reiterate that we are dealing here only with the case in which jury sentencing is utilized for legitimate purposes and not as a means of punishing or penalizing the assertion of protected rights. Jackson and Pearce are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is “ ‘patently unconstitutional.’ ” Shapiro v. Thompson, 394 U. S. 618, 631 (1969). A footnote in the Court of Appeals opinion indicates that petitioner argued in that court that unrestricted jury resentencing would have an impermissible “chilling effect” on his right to select a jury trial upon retrial. 455 F. 2d, at 641 n. 7. Although this argument is not mentioned in his appellate brief in this Court, petitioner’s counsel touched on it briefly at oral argument. Tr. of Oral Arg. 13-14. What we have said here regarding the collective force of Pearce, Colten, the guilty-plea cases, and Crampton should make clear that this claim is without merit. Jackson is not to the contrary. Unlike that case, the choice here is subject to considerable speculation. Applying Pearce, the judge may or may not give a sentence as high as the jury might give. More importantly, the discouraging effect cannot be said to be “needless.” 390 U. S., at 583. The parameters of judge- and jury-sentencing power, given the binding nature of Pearce, can only be made coterminous by either (1) restricting the jury’s power of independent assessment, or (2) requiring jury sentencing in every felony case irrespective whether guilt is determined by a bench trial or a guilty plea after reversal of the conviction. Either alternative would interfere with 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_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". AGUILERA v. ICKES, Secretary of the Interior. No. 5763. Court of Appeals of the District of Columbia. Argued May 3, 1933. Decided June 12, 1933. Rehearing Denied June 29, 1933. P. H. Loughran, of Washington, D., C., for appellant. O. H. Graves, V. H. Wallace, and Charles Fahy, all of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. VAN ORSDEL, Associate Justice. Prior to 1918, appellant company Aguilera y Compania, a Cuban corporation, was engaged in the business of producing manganese ore in Cuba, near Santiago. It owned and operated two mines, known as the Ysabelita and the Ponupo, situated adjacent to the Cuba railroad at El Cristo. The Ysabe-Jita mine was situated about four miles from the railroad, and the ore was hauled to the railroad in ox and mule carts, where it was loaded on railroad cars, for movement to Santiago. The company consisted of Charles F. Rand, Pedro Aguilera, and Eugenio Aguilera. It appears that Mr. Rand, during 1917 and 1918, was called to Washington by representatives of the United States Shipping Board and the Interior Department to give informa^ tion as to Cuban deposits of chrome and manganese ores, and to use his influence to stimulate production of these ores in Cuba. In February, 1918, two agents of the United States Shipping Board and the Interior Department went to Cuba, and requested appellant company to begin the production of manganese ore for the - United States, and advised the construction of a railroad from the Ysabelita mine to connect with the Cuba railroad at El Cristo. Appellant company proceeded upon the request of the agents of the government to construct the railroad and furnish ore from its mines. This work continued from February 18, 1918, to November 11, 1918, the date of the Armistice. A claim was submitted on May 26, 1919, by appellant company acting through Charles F. Rand, its vice president and treasurer, for an award of $104,922.83, representing the cost of constructing its railroad, together with certain expenses incident to its transportation facilities. The claim was rejected by the Secretary of the Interior, and on February 13, 1930, suit in equity was instituted in the Supreme Court of the District of Columbia under the act of February 13, 1920, 45 Stat. 1166. From a decree dismissing the bill this appeal was taken. Section 5 of the act of March 2, 1919, 40 Stats. 1274 (50 USCA § 80 note), under whdeh the claim was originally filed, among other things provides: “That the Secretary of the Interior he, and he hereby is, authorized to adjust, liquidate, and pay such net losses as have been suffered by any person, firm, or corporation, by reason of producing or preparing to produce, either manganese, chrome, pyrites, or tungsten in compliance with the request or demand of the Department of the Interior, the War Industries Board, the War Trade Board, the Shipping Board, or the Emergency Fleet Corporation to supply the urgent needs of the Nation in the prosecution of the war.” It is contended by appellant that the request to build a railroad and other appliances should he regarded as separate and distinct from the request to produce ore. It is urged that the company was making large profits prior to the time that it was requested to construct the railroad and other appliances, and that the losses which it sustained in the transaction through the building of the railroad should not be offset against its profits from the mining and production of the ore. We are not impressed by this contention. The Secretary of the Interior, or his agents, were not authorized under the act to request or demand the construction of a railroad as an independent agency. It could only be requested as an adjunct or aid in the producing of ore, and its cost could only be regarded as a part of the expenses incurred in the producing the ore. In computing the net losses, therefore, the loss resulting from the construction of the railroad and appliances must be considered as a part of the entire operation of producing or preparing to produce manganese. This was the view taken by the War Minerals Belief Commission when considering this case. Taking the loss sustained from constructing the railroad and its appliances and treating it as an expense in the producing of the ores, the commission found as a fact, which is controlling here, that the “statements submitted by the claimant show that the not loss of the Ysabelita mine and railroad from February 18, 1918, to November 11, 1918, was $22,949.04, hut that the net result of operations at both the Ysabelita and the Ponupo mines was a profit of $94,-544.71.” Based upon this finding of fact, the commission held “that no net loss was sustained by the claimant in its operation in producing manganese, either during the entire period of the war, or during the period after stimulation and the signing of the Armistice.” In other words, the commission treated the operation of the Ysabelita and the Ponupo mines as a single transaction. In this conclusion we agree. The government, in promoting stimulation, was dealing with a single company owning two mines located nine miles apart. The act of stimulation extended to both mines, and called upon appellant company to use the best means and facilities under its control to produce manganese for the use of the United States. Nowhere does it appear that there was any intention to treat the Ysabelita mine and the construction of the railroad as separate enterprises, nor is there any evidence in the record that it was so understood by appellant company during the stimulation period from February 18, 1918, to the date of the Armistice, November 11,1918. Under the 1920 act permitting a claimant to proceed in equity in the Supreme Court of the District of Columbia for a review of the action of the Secretary in disallowing his claim, the findings of fact by the commission in the ease upon which the Secretary based his decision axe made final and conclusive upon the court. This limits us, in the present ease, to the single question of whether or not as a matter of law the Secretary erred in treating the operation and production of the two mines as a single transaction. We agree with the conclusion reached by the Secretary. Other questions have been raised in this case, namely, as to whether or not a foreign company or citizen would he entitled to make a claim under the provisions of the War Minerals Relief Act (Act March 2, 1919 [50 USCA § 80 note]); also whether the appellant company, appearing here in the name of the surviving partner, is in fact a partnership or a corporation. It is unnecessary for us to consider these questions, since in the absence of any net loss no cause of action exists, and this conclusively disposes of the case. The decree is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_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. Thomas A. DaBOUL, Petitioner and Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 24705. United States Court of Appeals, Ninth Circuit. July 6, 1970. Thomas A. DaBoul, in pro per. Johnnie M. Walters, Asst. Atty. Gen., Tax Division, Dept, of Justice, K. Martin Worthy, Chief Counsel, I. R. S., Lee A. Jackson, Elmer J. Kelsey, Richard Farber, Dept, of Justice, Washington, D. C., for appellee. Before CHAMBERS and MERRILL, Circuit Judges, and BYRNE, District Judge. PER CURIAM: The appeal is dismissed as legally frivolous. The issuance of a statutory notice of deficiency by the commissioner (which was never issued in this case) is necessary before the tax court has jurisdiction. See Corbett v. Frank, 9 Cir., 293 F.2d 501. If DaBoul was entitled to any relief, he should have proceeded in some United States district court. 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_casetyp1_2-3-2	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination". Thomas JOHNSON, Plaintiff-Appellant, v. UNCLE BEN’S, INC., Defendant-Appellee. No. 91-2590. United States Court of Appeals, Fifth Circuit. July 1, 1992. Carol Nelkin, Nelkin & Nelkin, Houston, Tex., for plaintiff-appellant. Philip Pfeiffer, Fulbright & Jaworski, San Antonio, Tex., for defendant-appellee. William C. Isbell, Grand Prairie, Tex., amicus curiae. Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: This employment discrimination class action has been in the federal courts for eighteen years, a captive to large changes in the controlling law. It now makes its third appearance before this court. On behalf of himself and similarly situated class members, Thomas Johnson appeals the grant of summary judgment in favor of Uncle Ben’s, Inc. We affirm. I. Thomas Johnson, an employee at a rice-processing plant owned by Uncle Ben’s, Inc., filed this suit in 1974. The complaint alleged that, commencing in March 1972, UBI discriminated against him and similarly situated Black and Mexiean-American employees in violation of 42 U.S.C. § 1981. He amended the complaint in 1975 to add a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court certified a class of Black and Mexican-American persons who have been employed or may in the future be employed by UBI. The case was tried to the bench from October 3 until October 21, 1977. At the conclusion of Johnson’s direct case, the district court dismissed all claims except discrimination in the promotion of Black employees. UBI then called its personnel manager and three expert witnesses. At the conclusion of Johnson’s direct examination of an expert rebuttal witness, the district court granted judgment in favor of UBI. The first district court opinion held that the proportion of Blacks to whites in each job title at UBI should be compared to the ratio of Black to white workers in comparable jobs in the Houston Standard Metropolitan Statistical Area. Finding that the ratio of Black to white workers in each job title at UBI was similar to the proportion of Black to white workers in comparable jobs in the Houston SMSA, the district court held that UBI had not violated Title VII. Johnson v. Uncle Ben’s, Inc., 628 F.2d 419, 425 (5th Cir.1980). We in turn vacated and remanded for further findings, holding that workers employed in similar jobs in the Houston SMSA were not necessarily the benchmark qualified applicant pool. Johnson v. Uncle Ben’s, Inc., 628 F.2d 419 (5th Cir.1980). We stated: “If [UBI] hires laterally, the relevant comparison is to the general or qualified outside labor force. If Uncle Ben’s fills jobs by promotion, the relevant comparison, as we recognized in James v. Stockham Valves & Fittings Co., 559 F.2d [310] at 331, 341 [ (5th Cir.1977) ], is the company’s internal work force. The applicability of James in any given case turns on whether vacancies in non-entry level positions are or could be filled by promotion. If the vacant positions ordinarily are filled by lateral hires or hiring from among graduates of relevant educational programs, then the rigid James rule is inapplicable.” Johnson I, 628 F.2d at 425. We remanded for findings regarding “how many of those 394 employees [at UBI] hold jobs that ordinarily cannot be filled by promotion." Id. This district court was instructed to “determine the number of Uncle Ben’s jobs that were filled by promotion and the number that were filled by hiring from outside of the Uncle Ben’s work force.” Id. at 426. The Supreme Court, however, vacated Johnson I and remanded the case for reconsideration in light of its decision in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Uncle Ben’s, Inc. v. Johnson, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d 290 (1981). On remand, we held that Burdine was inapplicable to this disparate impact case and again remanded to the district court for further proceedings as stated in Johnson I. Johnson v. Uncle Ben’s, Inc., 657 F.2d 750 (5th Cir.1981). Judge Sterling, who originally tried this case and issued the first district court opinion reviewed in Johnson I, died while this case was pending. The case was then assigned to Judge Hughes. On May 2, 1991, Judge Hughes granted summary judgment in favor of UBI. In his opinion, Judge Hughes stated that judgment for UBI was appropriate because Johnson had failed to make a prima facie case of disparate impact and had not stated an actionable claim under § 1981. The district court held that Johnson proved only that there was a “high percentage of Black employees at Uncle Ben [sic] in low-level jobs versus a low percentage of minority employees in high level jobs.” Because Johnson failed to prove that low level employees were the appropriate pool of qualified persons in the relevant labor market, he failed to prove any disparate impact. The district court also found that Johnson failed to prove that any specific employment practice had a disparate impact upon the rate of Black promotion and that UBI had, in any event, rebutted any prima facie case by producing legitimate business reasons for its employment practices. Finally, relying on Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the district court rejected Johnson’s § 1981 claim, finding that the claim did not rest on discrimination in the formation of a new employment contract. The trial evidence consists largely of statistics concerning placement of Black and white employees at UBI’s two processing plants and administrative offices in Houston, Texas. UBI’s workforce is organized into three categories — plant workers paid an hourly wage, office workers paid an hourly wage, and salaried personnel. Each group is, in turn, subdivided into “zones,” each zone representing a wage or salary range. Johnson presented undisputed statistical evidence that Black employees were generally clustered in the bottom job zones within each of the three job categories, while the top job zones in each category were filled by white employees. Black employees comprise 95.3% of the workforce in the three lowest plant hourly job zones, holding jobs as porters, warehousemen, packers, fork lift operators, fumigators, bran hull helpers, rough rice helpers, and mill helpers. However, white employees held all of the highest two plant hourly job zones, including maintenance first class, boiler operator, and miller first class. The patterns were similar in office hourly and salaried positions. That is, Blacks were in the lowest office job zones, such as cafe porter, junior file clerk, and cook, and lowest salaried positions, including microbiology analyst and accountant. Whites held jobs in the higher zones in both office and salaried categories, including stenographer, export service clerk, receptionist, and computer operator and most of the salaried managerial and supervisory positions. Johnson did not deny that promotion across category lines, while possible, was unusual. Generally, workers were promoted only to the top of the job category in which they start their employment. However, the parties fiercely disputed the lines of promotion within each of the three job categories. UBI argued at trial and on appeal that workers qualified to hold jobs in the lower zones of a job category were not necessarily qualified to hold higher jobs in the same category. Johnson replied that the court should look to lower job zones as the qualified applicant pool for the higher job zones because the natural line of progression was a low level entry followed by gradual promotions through the job zones rising through the plant, office, or salaried hierarchy. He argues that Black employees were not promoted at the same rate as whites. Black workers entered at a low level and stayed there, stopped by a glass ceiling of race discrimination. Johnson offered data showing that most jobs at UBI were filled through promotion. According to Johnson’s undisputed evidence, in March of 1972, 65.3% of all the salaried positions, 53.6% of the office hourly positions, and 91.0% of the plant hourly positions at UBI were filled by promotion and not by initial hire from outside the UBI workforce. Johnson’s data, however, said little about which jobs at UBI were filled by promotion or, more importantly, from which jobs different UBI jobholders were promoted. II. Johnson’s Title VII Claim Johnson contends that three of UBI’s employment practices—tests, formal educational requirements, and subjective promotion decisions by supervisors—had the effect of denying promotions to a disparate proportion of Black employees. For his prima facie case of disparate impact, Johnson “need[ed] only show that the facially neutral employment standards operate more harshly on one group than another.” Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 621 (5th Cir.1983). This initial burden included proof of a specific practice or set of practices resulting in a significant disparity between the proportion of Black employees at UBI and the proportion of Blacks in the pool of qualified applicants. Cox v. City of Chicago, 868 F.2d 217, 220 (7th Cir.1989). Statistical disparities between the relevant labor pool and UBI’s workforce are not sufficient. Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795, 800-801 (5th Cir.1982). A plaintiff must offer evidence “isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777, 2788, 101 L.Ed.2d 827 (1988) (plurality opinion)). Johnson must also “offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs and promotions because of their membership in a protected group.” Watson, 108 S.Ct. at 2788-89; Pouncy, 668 F.2d at 801 (“The disparate impact model requires proof of a causal connection between a challenged employment practice and the composition of the work force”). Absent “a systematic analysis of the racial effects of all promotional criteria for each rank,” Black Fire Fighters Ass’n. v. City of Dallas, Texas, 905 F.2d 63, 63 (5th Cir.1990), Johnson cannot establish a prima facie case of disparate impact. Johnson challenges three employment practices: UBI’s “educational requirements,” UBI’s “subjective system of promotion," and UBI’s use of irrelevant employment tests. Johnson was able to do little more than describe the content or application of the requirements. He failed a fortiori to show the specific effect that each had on Black promotions. As evidence of UBI’s educational requirements, Johnson cites the testimony of Dr. Richard Jeanneret, an industrial psychologist and UBI’s expert witness. Jean-neret testified concerning his study of 119 job titles at UBI, in which he interviewed UBI’s employees, observed work at UBI’s facilities, and studied various job descriptions. At trial, he testified about the level of education that he believed UBI employees would need to perform different jobs successfully. Jeanneret did not explain in detail which jobs at UBI required which levels of education. He simply described the number of jobs at UBI that required a high school or college degree “or equivalent experience.” Jeanneret also did not purport to testify concerning the educational levels that UBI actually required. Rather, he testified only about the skills he believed UBI’s employees ought to have. He conceded that UBI’s own job descriptions did not contain “written educational requirements” and that he was testifying from his “expertise as opposed to some requirement that is imposed at Uncle Ben’s.” Jeanneret testified that UBI’s “posting notices” announcing “something about education or an education related item” such as “training in ... chemistry or math,” but he did not testify at any time that UBI actually required employees to have any degrees or formal education level for promotion to any UBI job. Dr. Jeanneret’s testimony, therefore, does not compel the conclusion that UBI had formal educational prerequisites for promotion. Aside from Dr. Jeanneret’s testimony, Johnson relies on his own testimony to establish that educational requirements existed at UBI. He testified that a supervisor told him that “you don’t have the science background or the academic background to satisfy the needs of the job [to which Johnson sought promotion]” (emphasis added). However, even if the district court credited Johnson’s testimony, that testimony indicates at most that a supervisor told Johnson that he lacked necessary “background” in science, not that Johnson lacked a formal degree or other specific educational prerequisite to promotion. According to Johnson’s own testimony, the supervisor simply informed Johnson that “you don’t have the skills that we are looking for.” This testimony indicates at most that UBI required some unspecified level of scientific training. In contrast to the testimony of Dr. Jean-neret and Johnson himself, UBI’s personnel director, Herman Koehn, presented specific testimony that UBI did not require any particular level of education for most of the jobs at UBI. Koehn testified that “[w]e don’t make an evaluation on whether [one] finished high school or not in terms of [whether one will] be[ ] offered a job.” According to Koehn, he “never thought about job requirements in terms of high school or no high school.” Rather than rely on formal education, Koehn testified that UBI “would focus on the job and the ability to make numerical calculations and reading and writing. And [this would] not necessarily [be] reflected upon the number of years at school. It would be what they had learned and what they were able to do through displaying what they can do on the job.” Koehn also noted that there were supervisors who had never obtained a college degree. Koehn admitted that food supervisors in research and development had to have “knowledge in the sciences,” but he denied that this knowledge required a “specific degree.” Rather, the supervisor in research and development needed an educational background in the “physical sciences, chemistry, courses that relate to ... food science.” Koehn also stated that microbiology analysts ought to have “academic training in microbiology,” but, again, he did not specify the level of training expected. In short, Johnson presented frail evidence concerning the differing educational backgrounds that UBI required for different jobs and presented no evidence whatsoever concerning how many Black employees failed to meet UBI’s requirements. Johnson contends that any educational requirements, regardless of their content, would “by definition” have a disparate impact on Black promotion rates, because Blacks in general tend to have less education than whites. To support this argument, Johnson cites national data from the 1970 U.S. census in his brief on appeal. The national population, however, is not the qualified labor pool against which UBI’s workforce should be compared. The effect of educational requirements on the ability of Blacks in the national population to get promotions at UBI has little relevance. New York Transit Authority v. Beazer, 440 U.S. 568, 584-87, 99 S.Ct. 1355, 1365-67, 59 L.Ed.2d 587 (1979) (statistics showing that 63%-65% of methadone users in New York City’s public programs were Black or Hispanic does not show that a disproportionate number of Black or Hispanic Transit Authority employees were dismissed for using methadone). The question is whether and how specific educational requirements affected UBI employees seeking promotions. It is not obvious that Black UBI employees in the pool of employees qualified for promotion to higher levels would not have the skills or education allegedly required for promotion. In short, there was little record evidence of the effects of educational requirements on Black promotion rates from the qualified applicant pool—employees at UBI. This is not to say that UBI’s entire internal workforce constituted the appropriate statistical pool against which the proportion of Black employees at UBI should be measured. Assuming without deciding that some job zones at UBI should be compared with other lower UBI job zones, we find a complete absence of evidence that UBI employees were barred by educational requirements from reaching higher levels of employment at UBI. The district court did not clearly err in finding that Johnson failed to show that these alleged educational requirements affected Black promotion. Johnson also argues that UBI allowed its supervisors to make promotion decisions subjectively and that this practice resulted in a disparity between the promotion rates of Black and white employees. However, “an employer’s policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct.” Watson, 108 S.Ct. at 2786. See also Pouncy, 668 F.2d at 801-02. Johnson has not offered any evidence that Blacks’ allegedly smaller number of promotions was causally related to this subjectivity. This cannot suffice to establish a prima facie case. Wards Cove, 109 S.Ct. at 2124-25. Finally, Johnson refers to UBI’s “use of invalidated employment tests” as one challenged employment practice that had a disparate impact on Black employees seeking promotions. There was testimony that UBI had used three different written tests to evaluate job applicants: (1) a typing test for jobs requiring typing; (2) an arithmetic aptitude test for clerical jobs requiring calculation such as statistical clerk; and (3) a “mental adaptability test,” which purported to test basic reading and math skills. The last test was apparently discontinued sometime between 1971 and 1973. Johnson presented no evidence of the effects of these tests on Black promotions. There was no testimony that Blacks performed more poorly on these tests than whites or that any Black employee was denied a promotion as a result of his performance on these tests. Indeed, Ethylene Burks, one of Johnson’s witnesses and the only witness to testify about a Black employee’s performance on the mental adaptability test, stated that the employee achieved a high score of 90 on the test. Burks also testified that achievement of any particular test score was not a prerequisite for promotion and that test scores were only one factor among many that a supervisor might consider. Given the dearth of evidence on the effects of the various tests on Black promotion rates, we conclude that Johnson failed to establish any causal nexus between the scores and the alleged disparate impact. Johnson contends that this court’s earlier decision in Johnson I precludes the district court from finding that he had failed to make a prima facie case. According to Johnson, the Johnson I court remanded for the narrow purpose of determining whether the appropriate pool of qualified applicants constituted the entire workforce of UBI or the population of people holding jobs similar to those at UBI in the Houston Standard Metropolitan Statistical Area. Johnson also argues that, if most jobs at UBI were filled through promotion, then, under Johnson I, the district court was required to find that Johnson had succeeded in establishing a prima facie case of disparate impact. We need not determine whether or not the district court’s findings went beyond the mandate of the Johnson I court. Assuming arguendo that they did, we find that intervening Supreme Court decisions justified such a departure. The “mandate rule” is “a specific application of the ‘law of the case’ doctrine.” Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir.1985). Under this rule, the district court must follow an appellate decision on an issue in all subsequent trial proceedings unless the presentation of new evidence or an intervening change in the controlling law dictates a different result or if the appellate decision is clearly erroneous and, if implemented, would work an egregious result. Falcon v. General Telephone Co., 815 F.2d 817, 320 (5th Cir.1987). If the Johnson I court held that a disparity between the proportion of Blacks in UBI’s workforce and the relevant labor pool of qualified applicants together with the use of challenged employment practices were sufficient to establish a prima facie case of disparate impact, it has been contradicted by the Supreme Court’s decision in Wards Cove, the Supreme Court’s plurality opinion in Watson, and this court’s decision in Pouncy. As we have explained, Johnson must identify a causal nexus between a specific employment practice and a disparity in Black promotions. The district court did not err in following Wards Cove and requiring evidence that the particular challenged practices caused a disparity in Black promotions. III. Johnson’s § 1981 Claim Citing Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the district court held that Johnson’s allegations of intentional discrimination were not actionable under 42 U.S.C. § 1981, because Johnson’s allegations concerned “post-formation conduct of the employment relationship, rather than ... the making or enforcing of a new contract.” The district court found that Johnson’s evidence of discrimination was based entirely on discrimination in “wage increases” and in promotions within each of the three basic job categories. The district court held that movement within each of the three categories — plant hourly, office hourly, and salaried — did not .work sufficient change in the employer-employee relationship under Patterson. Patterson requires discriminatory “conduct at the initial formation of the contract” or “conduct which impairs the right to enforce contract obligations through legal process.” Patterson, 109 S.Ct. at 2374. Discriminatory denials of promotion do not state a claim under § 1981 unless the promotion denied to the plaintiff “rises to the level of an opportunity for a new and distinct relation between employee and employer.” Id. at 2377. Determining whether a promotion would create a “new and distinct relation” requires a fact-specific examination into employee’s duties, pay, and responsibility before and after the promotion. Harrison v. Associates Corp. of North America, 917 F.2d 195, 198 (5th Cir.1990). The inquiry does not lend itself to blanket prescriptions. At the least, “[Rjoutine increases in salary and responsibility which are clearly part of an original contract of employment” do not signal a new employment relation. Harrison, 917 F.2d at 198. “It would be very odd to regard each rung on the career ladder as a different employment relation.” McKnight v. General Motors Corp., 908 F.2d 104, 110 (7th Cir.1990). Johnson presented little evidence of the precise nature of the promotions assertedly denied its class members. Rather, Johnson urged that class members were denied promotion “from hourly-paid positions to salaried positions and from non-supervisory positions to supervisory positions.” Johnson’s anecdotal evidence of specific attempts to obtain promotions showed that the promotions involved routine upward movement by one or two job zones within a single job category — plant, office, or salaried. In most cases, both the pay raise and the change in responsibilities were modest, involving no assumption of supervisory responsibility or change from wage payment to payment of salary. For instance, Ida Johnson, a junior file clerk (office job zone two), applied for the position of traffic clerk (office job zone four). Both jobs were essentially non-supervisory, clerical positions paid by the hour, the latter being distinguished primarily by the new duty of typing. Likewise, Marie Horner testified that a typist, Brenda Smith, was denied a promotion to the position of office receptionist — again, a move of two zones from one non-supervisory, office-hourly position to another. Zachary Perkins was denied a promotion from steeper-cooker (plant zone four) to dryer operator (plant zone seven). Both were non-supervisory positions involving the operation of plant machinery, and Perkins testified that steeper-cooker operators were normally promoted to dryer operator as a matter of course. Two class members present a closer case. Clyde Cobb and Johnson himself sought and were denied promotions from non-supervisory jobs in salaried job zone seven (the lowest salaried job zone) to a supervisory position. As the promotion sought was from a non-supervisory position to a supervisory position, there is not a complete absence of evidence that the promotion involved a new employment relation: changes in supervisory status are relevant to determining whether a promotion creates a new and distinct relation under Patterson. Sitgraves v. Allied-Signal, Inc., 953 F.2d 570, 574 (9th Cir.1992). However, we find that the record evidence concerning the promotions sought by Cobb and Johnson is insufficient to create a genuine fact question. Attainment of supervisory status does not alone create a new and distinct employment relation. Partee v. Metropolitan School District of Washington Township, 954 F.2d 454, 457 (7th Cir.1992); Mozee v. American Commercial Marine Service Co., 940 F.2d 1036, 1051-55 (7th Cir.1991). Aside from the supervisory status of the jobs sought by Cobb and Johnson, the other evidence suggested that the promotions would not create a new employment relation. Dr. Jeanneret’s undisputed testimony about the supervisory positions was that they could only be filled through promotion from lower-zoned positions. Such testimony indicates that the positions were simply rungs on a career ladder, not new employment contracts. Malhotra v. Cotter & Co., 885 F.2d 1305, 1311 (7th Cir.1989). In any case, aside from the fact that Johnson and Cobb sought supervisory positions, Johnson has not pointed to specific record evidence that the promotions sought by Cobb and Johnson would create new employment relations. Given that the change from a non-supervisory to a supervisory position does not suffice by itself to create a new employment relation, Johnson has not carried his summary judgment burden. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-17 (5th Cir.1992). Johnson’s general contention that the promotions in this case involved “new and distinct relations” sits uneasily with his contention at trial that UBI’s job zones represented routine steps in a sequential hierarchy in which work in each job zone gave the qualifications needed for the duties of the next zone. With such a natural progression, promotion within a single job category and across only one or two pay zones is not likely to create a new employment contract. To the contrary, they appear to be a fulfillment of expectations implicit in the original employment contract. Johnson strenuously argued at trial that the zone-by-zone promotion was simply the ordinary progression of a UBI employee. It is difficult to accept that proposition and also the proposition that each promotion represented a “new and distinct relation.” Carter v. South Central Bell, 912 F.2d 832, 840 (5th Cir.1990). The district court did not err in concluding that under the undisputed evidence there was no “new and distinct relation between employee and employer” within the meaning of Patterson. . IV. Retroactivity of the Civil Rights Act of 1991 In a Rule 28© letter sent to the clerk of this court four days after the enactment of the Civil Rights Act of 1991, Johnson argued that the Civil Rights Act of 1991 ought to be applied to this case retroactively. The Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(k), however, did not alter the “particularity” aspect of Wards Cove as applied in this case. The application of the Act has no effect on our disposition of Johnson’s Title VII disparate impact claim, and we need not address whether the Act’s provisions affecting Title VII disparate impact claims are retroactive. The Act would, however, affect the disposition of Johnson's § 1981 claim. Section 101(2)(b) of the Act construes § 1981 to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Under § 1981 as amended by the Act, racial harassment and other discrimination in an employment relation occurring after contract formation is actionable. If the Act applies to this case, the district court erred in dismissing Johnson’s § 1981 action on the ground that the discrimination did not occur during the formation of a new employment relation. We must determine whether § 101 of the Act amending § 1981 applies retroactively to cases pending when the Act was enacted. We have not previously addressed the issue. Three circuits and the Equal Employment Opportunity Commission have done so. Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992) (Posner, J.); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992); EEOC Notice No. 915.002 (December 27, 1991). All have found that the Act does not apply retroactively to conduct occurring before the effective date of the Act. We find the holdings of all other circuits on this issue persuasive. The statutory language and legislative history is inconclusive on the question of retroactive applica-' tion. Applying a general presumption against retroactive application of substantive laws, we find that § 101 of the Act, 42 U.S.C. § 1981(b), should not be.applied to a case pending on appeal that was filed and decided by the trial court before the enactment of § 101 and that arises out of conduct occurring before § 101’s enactment. In determining whether a statute is retroactive, we look first to the language of the statute. The language of the Civil Rights Act of 1991 offers little help. As one court has noted, Congress “dumped the [retroactivity] question into the judiciary’s lap without guidance.” Luddington at 227. The Act nowhere states that it applies either prospectively or retrospectively. It is silent on the subject, stating only that it “shall take effect upon enactment"— November 21, 1991. Sections 109(c) and 402(b) of the Act state that the Act should not apply retroactively to certain categories of cases. P.L. No. 102-166, §§ 109(c), 402(b), 105 Stat. 1071-1100. One district court has reasoned that § 402(b) and § 109(c) imply that the statute should generally be applied retroactively. Otherwise, the specific sections withdrawing retrospective application would be “meaningless.” Stender v. Lucky Stores, Inc., 780 F.Supp. 1302, 1304-05 (N.D.Cal.1992). Stender’s reasoning rests too much on negative implication. Congress may have wanted to ensure that certain retroactive applications of the statute were barred without intending to reach any general conclusion about the statute’s general retroactive application. Mozee at 933. Several Senators stated as much. Fray, 960 F.2d at 1377. Moreover, attempts to extend the Act explicitly to pending cases failed. President Bush vetoed the Civil Rights Act of 1990, which contained language applying the Act retroactively to pending cases. The Civil Rights Act of 1991 dropped this language and was signed by the President. It may have been that neither the proponents of retroactive application nor the supporters of pure prospectivity could obtain a veto-proof majority concerning the general application of the Act. We do not know, but the relevant point is that the negative implication cannot carry Stender’s freight given the swirling confusion surrounding the Act’s passage. Legislative history also sheds little light on whether the Act should apply to pre-enactment conduct. There is little point in reciting speeches made on the floor of Congress concerning retroactivity. These remarks have been summarized before, see, e.g., Fray, 960 F.2d at 1376, and they “contain statements that both favor and disfavor the retroactive application of the 1991 Civil Rights Act to pending cases.” Mozee at 934. See also Vogel, 959 F.2d at 598 (noting that Senators Danforth and Kennedy expressed different views concerning retroactivity of Act). We conclude only that members of Congress reached no consensus and left it to the courts to resolve. Luddington at 227; Mojica v. Gannett Co., Inc., 779 F.Supp. 94, 96 (N.D.Ill.1991). We are faced with a deliberately ambiguous statute, and we are asked to resolve political questions Congress was not able to answer. This difficulty is not unfamiliar. It is exacerbated by conflicting lines of authority in the Supreme Court’s jurisprudence concerning statutory retroactivity. In Bradley v. Richmond School Board, 416 U.S. 696, 716, 94 S.Ct. 2006, 2018, 40 L.Ed.2d 476 (1974), the Supreme Court declared a “general rule that a court is to apply a law in effect at the time it renders its decision.” Bradley seems to have adopted this “general rule” “even where the intervening law does not explicitly recite that it is to be applied to pending cases.” Id. at 715, 9 Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"? A. voting rights - reapportionment & districting B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot C. voting rights - other (includes race discrimination in voting) D. desegregation of schools E. other desegregation F. employment race discrimination - alleged by minority G. other race discrimination - alleged by minority H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority) I. other reverse race discrimination claims J. employment: sex discrimination - alleged by woman K. pregnancy discrimination L. other sex discrimination - alleged by woman M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women) N. other sex discrimination - alleged by man O. suits raising 42 USC 1983 claims based on race or sex discrimination Answer:
songer_genapel2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the 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. PAUDLER v. PAUDLER et al. No. 14636. United States Court of Appeals Fifth Circuit. Feb. 23, 1954. J. E. Vickers, Lubbock, Tex., Vickers & Vickers, Lubbock, Tex., for appellant Lyda M. Paudler. E. L. Klett, Lubbock, Tex., W. P. Walker, Crosbyton, Tex., L. A. Wicks, Sr., Ralls, Tex., Klett, Bean & Evans, Lubbock, Tex., for appellee. Before HOLMES, RUSSELL and RIVES, Circuit Judges. RIVES, Circuit Judge. The jurisdiction of the district court was sustained on a former appeal, 185 F.2d 901. This appeal is limited to those portions of the district court’s judgment holding a 320 acre tract of land in Crosby County, Texas to be community property and not the separate property of appellant and adjudging the consequences flowing from that holding. The Paudlers were married in 1921, and, after living together for more than twenty-seven years, separated in 1948. Mrs. Paudler then established residence in Arkansas, where she obtained a divorce in 1949. That decree did not adjudicate the property rights of the parties, and that was the purpose of the present suit, a purpose fulfilled by the district court to the satisfaction of both parties except as to this one tract of land. On December 10, 1937, the San Antonio Joint Stock Land Bank executed its deed conveying the 320 acre tract to Ly-da M. Paudler, the appellant, for a stipulated consideration of $9,600.00, of which $1,920.00 was cash and the remaining $7,680.00 was represented by purchase money notes signed by Lyda M. Paudler “joined by her husband, G. O. Paudler”. The granting clause of the deed reads: “Has Granted, Sold And Conveyed, and by these presents does Grant, Bargain, Sell And Convey unto the said Lyda M. Paudler, as her separate property and estate, all that certain tract or parcel of land, lying and being situated in Crosby County, Texas, and more particularly described as follows:” The Habendum clause of the deed reads: “To Have And To Hold the said above conveyed premises, together with, all and singular, the rights, members, hereditaments, appurtenances and improvements thereunto belonging or in anywise incident or appertaining, unto the said Lyda M. Paudler, as her separate property and estate, her heirs and assigns forever. * * * ” The Resolution of the Executive Committee of the Bank, attached to and forming a part of the deed, authorizes the conveyance of this property to Mrs. Paudler, “the wife of G. O. Paudler, * * * as her separate property and estate.” The deed was filed for record on December 27,1937. The district court found that: “The defendant handled the deal for the purchase of above land in 1937 from the San Antonio Joint Stock Land Bank, and in the transaction he directed that the deed be made to his wife, but did not intend that the land should be her separate estate, as recited in the deed, which was drawn by the grantor in San Antonio, Texas, and he did not know of said recitation in the deed at the time it was drawn, nor until the delivery thereof as an executed instrument, when he did read the deed and saw said recitation therein but still believing the land would be community property anyway as he had and still intended, he accepted the deed and put same of record. “The total consideration paid for said land was $9,600.00, payable $1920.00 cash and the balance as provided in a series of notes signed by both the plaintiff and defendant and maturing over a term of years, and without dispute all of said cash and deferred consideration was paid with community money. Furthermore there is no claim that the grantor agreed or meant to look only to the grantee Lyda M. Paudler and her estate, for the payment of the purchase money notes. The language of the deed raising a presumption that the land was conveyed as separate property of the grantee is contrary to the intent and facts at the time and has been rebutted by the circumstances and proof in this suit.” The evidence most favorable to the appellee Paudler is found in his own testimony in substance as follows. He bought the land in 1937. Mrs. Paudler was with him. He directed the grantor, “to put it in her and my name; but when the deed come back, it was made in her separate estate. And I says, ‘Well, we will let it go. It is community property anyhow.’ Because I don’t know any better.” He admitted that, before he accepted the deed and put it on record, he knew its contents. He further testified that Mrs Paudler never had any separate funds during the marriage or before the marriage, except that she had inherited a very small amount, $75.00; that the cash purchase price of $1,920.00 and the deferred payments of $7,680.00 were made from farming income, that is from community funds. His testimony on the trial that Mrs. Paudler had no separate estate at the time of the marriage was contradicted by his testimony in a deposition preceding the trial. Mrs. Paudler testified that she and Mr. Paudler had discussed the purchase of this half section of land before the Bank executed the deed; that she had a little money when they married and had loaned it to him to pay on another half section to which he had a deed at the time they married and which he called his. “And in the meantime I milked cows and sold milk and butter, had chickens and sold eggs, and I took in washing. So when we went to buy this place, well, the down payment, the money that I had saved, well, he put that in my name and said that was to be my place.” Mr. and Mrs. Paudler were the only witnesses whose testimony concerned this issue. The rule is well settled in Texas that a deed conveying property to the wife in her separate right and estate creates a prima facie presumption that same is her separate property, in the absence of evidence to overcome such presumption; and the property so conveyed will be treated as the wife’s separate property. It seems further to be settled in Texas that the husband’s conclusion as to the legal effect of a deed, or his declarations of ownership, made in the absence of the wife, are not sufficient to overcome the positive declarations in the deed. The principal insistence of the appellee Paudler is that the deed reciting a cash payment of $1,920.00 and the retention of a vendor’s lien to secure payment of purchase money notes for the balance in the sum of $7,680.00 executed jointly by the husband and wife constituted a mere executory contract of sale; that the entire purchase price was paid out of the community; and that: “It does not lie in the power of the husband and wife by contract between themselves, made in advance, to set aside the Constitution of this state, as applied to the wife’s separate property rights.” Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090, 1091, 1092, quoted in Gleich v. Bongio, 128 Tex. 606, 99 S.W.2d 881, 884. We conclude, however, from an examination of the Texas cases that, where the rights of creditors are not involved the reservation of the vendor’s lien is only for the purpose of enforcing collection of the purchase money, and does not operate otherwise to make the contract executory, Minter v. Burnett, 90 Tex. 245, 38 S.W. 350; and that the property took its status, either as separate or as community, at the time it was deeded; and the fact that the purchase money notes were subsequently paid out of community funds would constitute a gift from the husband and would not change the title. Goldberg v. Zellner, Tex.Com.App., 235 S.W. 870, 872; Wilson v. Wilson, Tex.Civ.App., 200 S.W.2d 258, 260, reversed on other grounds, 145 Tex. 607, 201 S.W.2d 226. We think that the presumption arising from the terms of the deed, that the 320 acre tract of land was the separate property of the wife, was not overcome by any legal or competent evidence. Further, in our opinion, considering all of the evidence to be competent and legal, the plain terms of the deed made in 1937, some ten years prior to the separation, far outweigh the husband’s testimony given after the separation and divorce. Since the district court allowed Mrs. Paudler credit for $3,625.00 as her one-half of the $7,250.00 balance of the purchase price owing at the time of marriage on Mr. Paudler’s half section of land and thereafter paid out of community funds, Mrs. Paudler concedes in brief that, in the event the half section deeded to her as her separate estate is adjudged to be her separate property, it would more or less “square accounts” for the court to allow Mr. Paudler credit for one-half of the community funds expended for the purchase of her tract, and that she does not contest his right to such reimbursement. We think that is fair, and that the concession should be accepted. The portions of the judgment appealed from are reversed and the cause remanded for further proceedings consistent with this opinion. Reversed and remanded. . “Q. All right. Now, you saw that deed before you closed the deal, didn’t you? A. I looked at it. “Q. You read it over, didn’t you? A. I doubt it; part of it, I think. “Q. Well, you remember that I asked you that question in your deposition, don’t you, Mr. Paudler? A. Yes, sir. “Q. And you told me at that time that you read it over. A. Yes, sir. “Q. And now what is it ? Did you read it over or didn’t you? A. Well, I am sure I read it over, but — I read it over. “Q. What? A. I am sure I read it over. “Q. And you knew at that time that the deed was made to Mrs. Paudler as her separate property and estate, didn’t you? A. Yes, sir. “Q. And you accepted the deed, and you took the deed yourself and closed the deal, didn’t you? A. Yes, sir, I accepted it. But I figured that it was community property. “Q. I didn’t ask you that, Mr. Paudler. I said you accepted it at that time? A. Yes, sir. “Q. And you went ahead and paid for it and put the deed of record with that in it, didn’t you? A. Yes, sir. “Q. And knowing that that was in that deed ever since before you closed the deal? A. Yes, sir.” . “Q. Do you know how much money Mrs. Paudler had, if any, when you and she were married? A. At the time she left? “Q. No, when you were married, do you know? A. It was very little, sir. I don’t remember, sir. “Q. Do you have any idea how much? A. Oh, I would say a thousand dollars, probably. “Q. A thousand dollars? A. Five hundred, a thousand dollars.” . McCutchen v. Purinton, 84 Tex. 603, 19 S.W. 710; Goldberg v. Zellner, Tex. Com.App., 235 S.W. 870; Watson v. Morgan, Tex.Civ.App., 91 S.W.2d 1133. . Loeb v. Wilhite, Tex.Civ.App., 224 S.W. 2d 343, 346. . Loeb v. Wilhite, supra, note 4; Goldberg v. Zellner, supra, note 3; see also, Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297, 301; McFadden v. McFadden, Tex. Civ. App., 213 S.W.2d 71, 75. . Appellee cites also Article 16, Sec. 15 of the Texas Constitution, Vernon’s Ann. St.; Articles 4614 and 4619, Sec. 1 of Vernon’s Texas Statutes and, among other cases, the following: Kearse v. Kearse, Tex.Com.App., 276 S.W. 690; Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799; German v. Gause, Tex.Com. App., 56 S.W.2d 855; Bong v. Bruce, 145 Tex. 647, 201 S.W.2d 803, 171 A.L.R. 1328; Dipuccio v. Hanson, Tex.Civ.App., 233 S.W.2d 863; Hudspeth v. Hudspeth, Tex.Civ.App., 198 S.W.2d 768. 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_const2	106	What follows is an opinion from a United States Court of Appeals. Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second 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. David Perea ROMERO and Ronald Eugene Tickle, Appellants, v. UNITED STATES of America, Appellee. Nos. 21686, 21686-A. United States Court of Appeals Ninth Circuit. Feb. 12, 1969. Thomas R. Sheridan (argued), of Simon, Sheridan, Murphy, Thornton & Medvene, Los Angeles, Cal., for appellants. Jo Ann Dunne (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS and ELY, Circuit Judges, and FOLEY, District Judge. Honorable Roger D. Foley, District of Nevada, sitting by designation. ROGER D. FOLEY, District Judge: Appellant Romero was found guilty after a court trial on a two-count indictment charging violation of 21 U.S.C. § 174. Romero’s counsel specifies as error the following: “1. Romero’s arrest without a warrant was illegal as it lacked the prerequisite probable cause. * * * “2. Romero’s statements after his arrest are not admissible into evidence and should have been suppressed as said statements were obtained in violation of Romero’s constitutional rights under the Fourth, Fifth and Sixth Amendments to the United States Constitution, and said statements were not voluntary and said statements were obtained during a period of ‘unnecessary delay’ under Rule 5(a) Federal Rules of Criminal Procedure. * * “3. There is insufficient evidence to support a conviction of Romero on count one of the indictment. * * * “4. The search warrant is invalid and any evidence obtained pursuant to it should be suppressed as it does not set forth probable cause and it contains constitutionally inadmissible statements of Romero. * * * “5. Romero’s statements at Tickle’s home were obtained in violation of his constitutional rights under the Fourth, Fifth and Sixth Amendments to the United States Constitution, and they are not voluntary statements, and they were obtained during a period of unnecessary delay pursuant to Rule 5(a) Federal Rules of Criminal Procedure. * * * “6. There is insufficient evidence to support a conviction of Romero on count two of the indictment. * * ” Appellant Tickle, who was named along with Romero in count two of the same indictment, was found guilty after a separate trial to the court. Tickle’s counsel alleges that the trial court committed three errors: “1. There is insufficient evidence to convict Tickle on count two of the indictment. * * * “2. The search warrant for his home fails to set forth probable cause and any evidence taken from his home should be suppressed. * * * “3. The confession obtained from Tickle was obtained in violation of his constitutional rights under the Fourth, Fifth and Sixth Amendments to the United States Constitution. * * ” The answer to each of the asserted errors turns entirely upon the facts as they appear from the record. There are no unsettled questions of law to be resolved on this appeal. For us, it is simply a matter of determining whether the district court properly applied well-settled principles of law to* the facts of this case. We have carefully read the entire record of the proceedings below and studied the briefs of counsel filed with this court, and we are satisfied that all of the assignments of error are without merit. Throughout all of the proceedings before him, the district judge ruled correctly in all of the instances raised on this appeal and, in addition, fully protected the rights of the appellants and accorded them a fair trial. Not one of appellants’ nine specifications of error is worthy of discussion. Affirmed. Question: What is the second 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_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). THERM-O-PROOF INSULATION CO. v. SLAYTER & CO. No. 5399. Circuit Court of Appeals, Seventh Circuit. Dec. 21, 1935. George W. Hansen, Sidney Neuman, and Joseph F. Devereux, Jr., all of Chicago, Ill., for appellant. Charles B. Belknap, of Toledo, Ohio, and Lee J. Gary and Albert G. McCaleb, both of Chicago, Ill., for appellee. Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge. This suit was brought to enjoin infringement of appellee’s patent, No. 1,728,-837, applied for September 30, 1927, and issued September 17, 1929, covering “Method of Heat Insulating.” The court found for appellee, and an interlocutory, injunctional, and accounting decree was entered. Defendant appealed. EVANS, Circuit Judge. Patentee was most unfortunate in wording his claim. He entitled his patent “Method of Heat Insulating.” His first claim starts with these words: “The method of building a wall whereby to increase the insulating and fire resisting properties thereof.” From these two statements it is assumed that his was a process patent. The first paragraph of the specifications confirms this conclusion, for the inventor there says: “This invention relates to method for heat insulating buildings and the like and refers more particularly to an improved process by means of which houses or other buildings already standing can be conveniently, economically and efficiently heat insulated although the invention in' certain of its broader aspects is not limited to the heat insulation of buildings already constructed.” His second paragraph injects doubt and confusion into the study for there he says: “Another object of the invention is to provide material which can be economically produced and applied in the walls of the building ip the carrying out of the method and which in addition to its heat insulation qualities will be fire-resisting.” This product was not the subject of the claim which was allowed. All product claims were disallowed. In the license contract which appellee offered in evidence in order to show extensive use, it is significant, however, that the royalty was on the product. When the claim is carefully analyzed, we find it to be a hybrid. It begins as a process and ends like a product claim. We quote and analyze the single claim of the patent: “What I claim as my invention is: The method of building a wall whereby to increase the insulating and fire resisting properties thereof without undue added weight, which comprises utilizing spaced apart walls of a building previously constructed as a form for receiving heat insulating material, (1) providing openings to afford access to the air spaces between said spaced apart walls, (2) inserting the outlet end of a conduit through said openings, (3) and forcing through the said conduit a comminuted heat insulating material, said material being of sufficiently light weight and devoid of free moisture content of sufficient amount to cause bulging or other injurious effects upon the ■ exposed surfaces of said walls.” (The numerals are inserted by the court.) We are not without sympathy for counsel who is called upon to determine whether a process or a product claim best protects his client’s discoveries. It is at times difficult for him as it is for us to decide this question. It is unfortunate that form should play any substantial part in determining the validity of a patent monopoly covering a patentable discovery. In solving the problem it would seem safe for courts to assume that patent applications should be as liberally construed as pleadings, and we should endeavor to give effect to the pleader’s good faith efforts to describe his discovery and secure protection therefor. Courts cannot, of course, add what is omitted or subtract that which is clearly inserted in the claim. In many cases it has been observed that what is not claimed is dedicated to the public. It would seem, however, a violent assumption to so infer even an implied dedication. The same conclusion is reached, however,' but by better reasoning, by holding that the claim is a contract between the Government and the patentee and bespeaks the agreement of the parties. Accepting as we do the view that additions and subtractions may not he made, we still believe a claim, like the one before us, may be construed so as to give effect to the efforts of the inventor and his solicitor. It may result in narrowing the claim, but we think it unfair to give it a construction which would result in its instant annihilation. Undoubtedly, Slayter believed he had made a discovery and tried to describe it. Approaching the patent from this angle, we can view the claim as a process claim and restrict the last step to blowing the comminuted heat insulating material therein specifically described and it only. While novelty, if any there be, resides in the last step — the blowing of this particular material — yet validity will be accorded it, if we can find patentable originality in this step. Turning to the claim as analyzed, the first words ending with “weight” merely describe the art — patentee’s field of operation. The next clause is not so readily reconciled grammatically. We assume “which” is attached to the word “method.” Again, the draftsman was describing the fidd of his operation — his art. Neither clause describes a step in the patented, or any, process. The next clause “providing openings to afford access to the air spaces between said spaced apart walls” is the first step of this process claim. It was old, well known, commonly used, and never could evidence more than mechanical skill. The second step, “inserting the outlet end of a conduit through said openings,” was likewise anything but novel. The last step, “forcing through the said conduit a comminuted heat insulating material,” was likewise old. There was not a sign of inventive genius in providing an opening in a wall, or in inserting in said opening the outlet end of a conduit (a nozzle), or in blowing or forcing "material through a conduit. Prior art need not be cited, but, if necessary, it is in the record. See, also, Powers-Kennedy Contracting Corp. v. Concrete Mixing, etc., Co., 282 U.S. 175, 51 S.Ct. 95, 75 L.Ed. 278. The only novelty, which may be asserted for this claim is in forcing the specified materials described as follows: “Said material being of sufficiently light weight and devoid of free moisture content of sufficient amount to cause bulging or other injurious effects upon the exposed surfaces of said walls.” “Comminuted material” is defined in the specifications as follows: “By the term ‘comminuted material’ is of course included various degrees of fineness but does not mean that the material is reduced to a powdered condition. In fact the particles are preferably of sufficient size to give a large body for the amount of weight.” Unfortunately for the validity of the claim, greater indefiniteness and more vagueness could hardly be found. It is so worded (accidentally or intentionally) as to catch an alleged infringer coming or going. But, fearful that the description be not sufficiently elastic, Slayter further says in his specifications: “While I have described one material and one method of applying it I do not wish to limit the method to the particular material mentioned, except as ultimately set forth in the claim.” Can we, in these words, find a product sufficiently described to permit us to say it is patentably novel? “Comminuted heat insulating material” is a broad and comprehensive term. “Heat insulating material” needs no definition. “Comminuted” is also pretty well understood. It means “reduced to minute particles,” “pulverized.” The prior art is loaded with descriptions of “comminuted heat insulating material.” The patent originally had a claim covering the product which was rejected, the examiner saying: “ * * * The method claimed is not a ‘method of heat insulating a building,’ but is in reality a part of the process of building a heat insulating wall. The material is in such cases forced into the air spaces in the walls of a building. The process, if properly defined, is not considered a patentable one, aside from the composition, as the only method of using such compositions in this connection is placing or ‘forcing’ it into the space in question. “Claims 1 to 7 are rejected as unpatentable over Orlovsky or O’Hara, which indicates the use of a similar composition in the same manner. “Claims 8 to 11 are rejected as unpatentable over 'Orlovsky. Orlovsky describes a mixture of any available organic fibrous material, with lime, gypsum (plaster of Paris) and a fungicide (potassium permanganate). In view of this art, no invention is seen in the substitution of any available fibrous materials such as corn cobs, paper, etc., in place of Orlovsky sawdust etc.” ' We, therefore, must find the words of limitation, if at all, in the succeeding ■clauses. The material is described “as being sufficiently light weight and devoid of free moisture content of sufficient amount to cause bulging or other injurious effects upon the exposed surfaces of said walls.” Required specificity must be found in the adverb “sufficiently.” It cannot be that the clause “sufficiently light weight to cause bulging or other serious defects” informs us of the kind of material one must use to comply with .this step of the claim. Some walls will bulge easier than others depending on the material and construction. We recognize that a claimant may describe a product in terms of results, but to say that the material should be sufficiently light as to prevent bulging of walls is too general and vague to secure protection. Also, it is said, the material must be “devoid of free moisture content of sufficient amount to cause bulging or other injurious effects. * * * ” The term “devoid of free moisture content of sufficient amount” is unfortunate. We assume that the words used are equivalent in meaning to “sufficiently devoid of free moisture so as to avoid bulging,” etc. Let us assume that weight and dryness of material are important factors in the material which is.to be blown. How much dryness and how much weight would be “sufficient”? How can another comply with or avoid this step? Obviously, the material strength of the walls would be vital. Perhaps, the ease with whiqh the blowing might take place would be affected by the weight of the material. Further discussion would be of no avail. Our conclusion is that the language is too general to warrant protection. Moreover, such material was refused protection by the patent office when the product claims were eliminated. Likewise, the steps outside of this last one were anticipated by this disclosure of Balduf. In the Balduf patent (prior art) the following appears in the specifications: “This material may also be blown in place as through a hose, for example in covering a ceiling which has a floor above it, the hose being introduced between the floor and the ceiling and the fibrous material discharged therefrom. In such case the layer formed may be sprinkled with a thin stream or spray of water which will form the desired crust.” In Powers-Kennedy Contracting Corp. v. Concrete, etc., Co., 282 U.S. 175, 180, 51 S.Ct. 95, 97, 75 L.Ed. 278, the court, speaking of a patent issued in 1915, said: “The idea of moving fluids and solids through a pipe by air pressure or other fluid pressure is old, and was well known at the time of the alleged invention. Both granular and plastic materials had been so moved by devices quite similar to that of the patent. These covered a wide range, from lift-pumps for sand and sulphur, to apparatus for transporting muck, spoil, grout, and concrete. * * * “ ‘The observations of common experience in the mechanical arts would lead one to expect that, once the feasibility of using “wet” concrete in building operations was established, the mechanical skill of those familiar with engineering and building problems would seek to- make use of known methods and . appliances for the convenient handling of this new building material.’ “Here it appears that the use of compressed air for conveyance of granular and plastic materials had long been known and practised; so that the cited case is clear authority against invention in the instant cases.” The product claims in the Balduf patent covered “a new insulating material which is easily handled as a dry filling agent” and which was blown into the .space between the walls' of the building. Its claim 1 describes “a dry, fluffy insulating composition comprising shredded paper and comminuted plaster in substantially the proportions that these materials exist in a plasterboard having a plaster core and paper covering sheets.” Another claim covered “comminuted wallboards having paper covers and hydrated gypsum cores, so that the composition is a light, fluffy mixture of partially hydrated gypsum and fibers.” An earlier German patent issued to Orlovsky described the material for filling empty spaces as follows: “A filling material for use between walls and the like, consisting of com-minuted peat, sawdust, and the like, thereby characterized, that the said organic materials are mixed with gypsum and powdered lime that has been slaked with potassium permanganate solution.” Zahn obtained a patent in 1904 on material which could he used to blow into the hollow walls of the building and thereby avoid disastrous fires, as follows: “A filling composed principally of infusorial or diatomaceous earth.” For it he claims added virtues as follows: “Said diatomaceous earth is highly refractory, and when put into the wall, floor, or ceiling, as stated, prevents any draft through the same. This prevents the fire from passing from one part of the building to another through the usual hollow portions of the walls or floors. The filling also affords protection against rats, mice, and vermin, as it is very light and powdery and when disintegrated serves to prevent the rodents or other vermin from making runways.” Still other material had been described and used before Slayter entered the field. While he did not limit himself thereto, Slayter described a material that might be used as follows: “finely comminuted corn cobs and paper mixed with plaster of Paris and zinc chloride and sufficient moisture to permit the handling of the material without unnecessary dust.” Confronted by such prior art dealing with the material to be blown, the vagueness and impossibility of the language of the claims which described the material to be blown, is emphasized. Appellee has asserted extensive use of the patent to support its claim of invention. While we know of no better support for the validity of claims of a patent than wide-spread, generous support by those skilled in the art, or substantial tribute paid by others for a license, yet we are not satisfied that in the instant case there was the generous recognition of this invention which appellee asserts. To assert that licenses have been taken by various parties is not informative. The licenses speak for themselves. They are the best evidence of their contents. If there be any merit in recognition of the patentee as an inventor through the issuance of licenses, the court must make that deduction from the license rather than from licensor’s conclusions respecting the license. In this case one license was presented to the court. It called for the fixation of a price for the product, and said licensee was permitted to designate others as sub-licensees. True, there was a license to use this patent, but if there was any possible profit from the license, it arose out of the sale of the non-patented product. Even that clause was so drawn that it is impossible to say that the licensee called for the payment of a tribute to the patentee for the use of the patent. Extensive use, as before stated, is an important factor in determining doubtful cases, but extensive use cannot be established by a witness giving oral testimony as to conclusions respecting licensees where the licenses are not in evidence. It may be that a license is granted in consideration of a cross-license, and the extensive use is in no way attributable to the alleged invention covered by the claim sued on. Moreover, in the instant case the doubt which must exist before extensive use becomes a factor is not present. The decree is reversed with directions to dismiss the complaint. 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:
sc_caseorigin	160	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. KAYE v. CO-ORDINATING COMMITTEE ON DISCIPLINE OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK. No. 300. Decided February 13, 1967. Morton Lif tin for petitioner. Angelo T. Cometa for respondent. Per Curiam. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Appellate Division of the Supreme Court of New York, First Judicial Department, for reconsideration in light of Spevack v. Klein, 385 U. S. 511. Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice Stewart would affirm the judgment below for the reasons stated in the dissenting opinions of Mr. Justice Harlan in Spevack v. Klein, 385 U. S., at 520, and Garrity v. New Jersey, 385 U. S. 493, 500. 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. HELVERING, Com’r of Internal Revenue, v. ELIAS. ELIAS v. HELVERING, Com’r of Internal Revenue. No. 277. Circuit Court of Appeals, Second Circuit. Aug. 1, 1941. Writ of Certiorari Denied Dec. 8, 1941. See 62 S. Ct. 361, 86 L.Ed.-. Edgar B. Bronson, Jr., of New York City (Jeremiah T. Mahoney, of New York City, of counsel), for taxpayer. Samuel O. Qark, Jr., Asst. Atty. Gen., and Sewall Key and L. W. Post, Sp. Assts. to Atty. Gen., for the Commissioner. Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge. This case comes up upon petitions by the Commissioner and the taxpayer to review an order of the Board of Tax Appeals which re-assessed the taxpayer’s income tax for the years 1934 and 1935. The controversy arises over four separate deeds of trust executed by the taxpayer on July 1, 1929, by each of which she conveyed $25,-000 to her husband in trust for one of their four children. All these deeds empowered the trustee to invest and reinvest the funds at his pleasure and to use the net income “in his sole discretion” for the support of the beneficiary until he or she reached twenty-one years, whereupon he was to pay the beneficiary any accumulations and thereafter the whole annual income until the beneficiary’s death or the settlor’s, on either of which the trust should end and the trustee should personally receive the whole corpus. There were other provisions which we need not describe except a clause by which the settlor reserved to herself the power to revoke the instrument at any time after January 15, 1936. It will thus be seen that she surrendered all control of these funds and all income arising from them for a period of six years, six months and fifteen days, but that thereafter she regained complete control, which in fact she exercised within a few weeks after January 15, 1936. The first question, and the only one which we find it necessary to decide, is whether the trusts were within § 22(a) of the Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 669, as construed in Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788. The Board thought that they were not, and decided the case upon the applicability of §§ 166 and 167 of the Act of 1934, 26 U.S.C.A.Int.Rev.Code, §§ 166, 167, upon grounds which it is unnecessary for us to describe, beyond saying that a majority held that § 166 did not cover any income actually used for the support of a beneficiary, but that the whole Board held that § 167 covered the accumulations. Each party appealed. Our decision in Commissioner v. Barbour, 2 Cir., 122 F.2d 165, forecloses us in this case, for there is no substantial difference between a trust for six years and for six and a half; moreover, a settlor’s lawyers are no more likely to be amenable to his wishes than a husband to his wife’s. In that case, as in Commissioner v. Woolley, 2 Cir., 122 F.2d 167, we held that in “short-term” trusts, which keep the income among members of a family living in amity and dependence, the failure of the settlor to reserve any control or management of the fund pending the trust was not an important factor. The case of Helvering v. Clifford, supra, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, upon which those cases were a gloss, was a departure from the concept of property as it is generally used in the law, and involved in some measure a reversion to earlier notions which treated the family as the jural unit. Ordinarily a person has “property” in a thing if he hás untrammelled freedom to use it as he wills and may invoke legal sanctions to protect that freedom. It is irrelevant that he is likely to make use of that freedom as another person desires, so long as the other has no power to coerce him. That is now no longer true in this class of cases; the court must look to the whole nexus of relations between the settlor, the trustee and the beneficiary, and if it concludes that in spite of their changed legal relations the three continue in fact to act and feel toward each other as they did before, the income remains the settlor’s; it follows that the most important factor is that any shifts in the legal control of income shall be confined to members of the same family, or to them and others complaisant to their desires. The court confirmed this view even more sweepingly in Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655. Obviously, the consequences of an inflexible application of such a doctrine would be extremely drastic; for example, the income of an equitable life estate created by a father for his son would be taxed to the father so long as he lived. The court had no such revolutionary purpose and very carefully protected itself from such an interpretation of its decision. For, while it is true that the prime consideration is whether the income remains within the family, there are two other circumscribing factors: the length of the term and the powers of management reserved to the settlor. We think that these factors are complementary; the longer the term, the more important the reserved powers, and vice versa. Commissioner v. Buck, 2 Cir., 120 F.2d 775. There is a good reason for such a correlation, because the shorter the term the more complete is the settlor’s real power of management and control regardless of legal reservations. A trustee who must manage a fund throughout the life of the beneficiary may well refuse to be guided by the counsels of the reversioner; the income is to be the beneficiary’s presumably for a long time, and the reversioner has a correspondingly smaller stake. But a trustee who will have to account to his beneficiary for only five or six years and then to the reversioner, is in a very different position; if he is reasonable, he will heed the reversioner, treat his interest as paramount and be guided by his judgment. Legal powers of management add very little to such a reversioner’s actual control over the fund while the trust lasts. For this reason it appears to us that it is •only when the term is longer than six ■or seven years (as for example ten years, Commissioner v. Jonas, 2 Cir., 122 F.2d 169) that the settlor’s legal reservation of control becomes vital, certainly if the settlor and the trustee are not strangers. In the case at bar they were husband and wife, living together in obvious harmony; and while there is indeed always the chance that a wife will yield to her husband’s judgment in such matters, the creation of a trust, though an evidence of her confidence, is not likely much to increase his control. So far as she may have been disposed to put her judgment against his and he to yield, it is not very likely that during the six and a half years which at most could elapse before she could enforce her will, he would disregard her wishes as to the disposition of the principal, merely to increase the income of the beneficiary meanwhile. Order affirmed on the taxpayer’s appeal; order reversed on the Commissioner’s appeal. 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_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". In re Gerald David GLENN and Janice Sue Glenn, Debtors, The FEDERAL LAND BANK OF LOUISVILLE, Creditor-Appellant, v. Gerald David GLENN and Janice Sue Glenn, (82-3821) Debtors-Appellees. In re Edward J. PIGLOSKI and Mary L. Pigloski, Debtors, Edward J. PIGLOSKI and Mary L. Pigloski, Plaintiffs-Appellants, v. Maxine WYNN and Manor Mortgage Company, (83-1316) Defendants-Appellees. In re Ralph MILLER, Debtor, FIRST FEDERAL OF MICHIGAN, Defendant-Appellant, v. Ralph Henry MILLER, (83-1585) Plaintiff-Appellee. Nos. 82-3821, 83-1316 and 83-1585. United States Court of Appeals, Sixth Circuit. Argued April 12, 1984. Decided April 16, 1985. Rehearing and Rehearing En Banc Denied in Nos. 83-1316 and 83-1585 June 3, 1985. Stephen R. Buchenroth (argued), Vorys, Sater, Seymour & Pease, Columbus, Ohio, for creditor-appellant in No. 82-3821. Robert A. Goering (argued) Wikle & Goering, Cincinnati, Ohio, for debtors-appellees in No. 82-3821. Mary Ann Zito (argued) UAW Legal Services Plan, Detroit, Mich., for plaintiffs-appellants in No. 83-1316. Edward R. Barton (argued), Allegan, Mich., amicus curiae. Ronald T. Barrows, St. Clair Shores, Mich., for defendants-appellees in No. 83-1316. Robert H. Skilton, III, Patrick E. Mears (argued), John D. Dunn, Grand Rapids, Mich., for amicus curiae (Appellees). W. Stanley Fambrough (argued), Detroit, Mich., for defendant-appellant in No. 83-1585. Matthew J. Mason, Detroit, Mich., for plaintiff-appellee in No. 83-1585. Edward R. Barton (argued), Allegan, Mich., amicus curiae. Before ENGEL and KRUPANSKY, Circuit Judges, WEICK, Senior Circuit Judge. ENGEL, Circuit Judge. These three appeals raise similar questions about the point in the foreclosure process at which a Chapter 13 debtor loses the right to cure a default on a real estate mortgage on his principal residence. In each case, the debtor gave a mortgage on real estate that was subject to foreclosure proceedings. In In re Gerald David Glenn, No. 82-3821, the debtors filed their Chapter 13 petition after the mortgagee had obtained a foreclosure judgment but before the property was sold. In In re Ralph Miller, No. 83-1585, and In re Edward J. Pigloski, No. 83-1316, the debtors filed their petitions after the properties had been sold at foreclosure sales but before the statutory redemption periods had run. The debtors in all three cases seek to protect their interests in the real estate by paying off any arrearages through their Chapter 13 plans and resuming the regular mortgage payments. The mortgagee in each case has objected that this treatment is contrary to the provisions of 11 U.S.C. § 1322(b). Each appeal also raises at least one additional issue. In Glenn, the debtors argue that, pursuant to 11 U.S.C. § 1322(b)(2), their Chapter 13 plan may modify the rights of their creditor because the creditor’s security interest is in a parcel that includes not only their principal residence, but also fifty acres of adjoining farmland. Should they not be permitted to reinstate the terms of their mortgages, the debtors in Miller and Pigloski seek a ruling that would toll the running of the statutory redemption periods for the duration of their Chapter 13 plans. The Pigloskis also claim that they should be allowed to spread the payment of the redemption amount over the entire length of their Chapter 13 plan while the debtor in Miller argues that the expiration of the redemption period following the foreclosure sale would constitute a preferential transfer that may be avoided under 11 U.S.C. § 547(b). I. Gerald David and Janice Sue Glenn (82-3821) In October 1978 the Glenns bought their home and the fifty acres of land on which it is located in Fayetteville, Ohio. They made a $20,000.00 down payment and gave a first mortgage promissory note to the Federal Land Bank of Louisville to finance the balance of the purchase price. The Glenns also delivered a mortgage deed to the bank. The note required the payment of $2850.00 every six months and contained an acceleration clause giving the bank the option to declare the entire debt due and payable immediately should the Glenns fail to make any payments. The Glenns subsequently failed to make some of the mortgage payments, and the bank accelerated the debt. When the Glenns failed to pay the accelerated amount, the bank commenced foreclosure proceedings. On December 18, 1981, the Court of Common Pleas of Brown County, Ohio entered a foreclosure judgment against the Glenns for $51,991.95. Later that same day, the Glenns filed their Chapter 13 petition with the bankruptcy court. Under the terms of their Chapter 13 plan, the Glenns proposed to pay the bank the arrearage on the mortgage over a period of twenty-one months while maintaining current payments outside the plan under the original terms of the note. The bank objected to the plan, arguing that the note and mortgage had been merged and reduced to judgment and that the Glenns currently owed not just the amount they were in arrears but the entire judgment amount. The bankruptcy court overruled the bank’s objection and confirmed the plan. Relying upon the rationale of the Second Circuit in In re Taddeo, 685 F.2d 24 (2d Cir.1982), the court held that 11 U.S.C. § 1322(b)(5) permitted the Glenns to “deaecelerate” their mortgage and reinstate the original payment schedule. The parties agreed to a direct appeal to our court pursuant to 28 U.S.C. § 1293(b). Ralph Miller (83-1585) On August 5, 1980, Ralph Miller purchased a house in Detroit, Michigan, subject to an existing first mortgage, dated April 17, 1973, held by First Federal of Michigan. The sale price was $26,500.00, and the balance on the mortgage note was approximately $20,900.00. Following repeated, lengthy lay-offs from his employment, Miller defaulted on the mortgage in 1981. First Federal commenced a foreclosure by advertisement in March 1982, and a sheriff’s sale was held on May 14, 1982. First Federal purchased the property for a bid of the balance owing on the mortgage. On November 2, 1982, before the statutory redemption period expired, Miller filed a Chapter 13 petition and plan. In his plan, Miller proposed to pay the arrearage on the mortgage and to maintain current payments on the note. Miller also moved the bankruptcy court to issue a stay order tolling the redemption period. The bankruptcy court denied the motion, denied confirmation of the plan, and lifted the automatic stay as to First Federal, allowing the mortgagee to pursue eviction. Miller appealed these decisions to the district court, and the parties entered into a stipulation to stay proceedings pending appeal. Judge Thornton reversed the bankruptcy court, holding that 11 U.S.C. § 1322(b)(5) permits a Chapter 13 debtor to set aside a foreclosure sale, pay any arrearage, and reinstate the terms of the mortgage when the petition is filed before the redemption period expires. The parties entered into another stipulation to stay proceedings pending First Federal’s appeal of Judge Thornton’s decision. Edward J. and Mary L. Pigloski (83-1316) In May 1981, Edward and Mary Pigloski sought to refinance their house by entering into a loan agreement arranged by Manor Mortgage Company. The house was encumbered by an existing mortgage of $14,-500.00, which the mortgagee, Standard Federal Savings & Loan Association, had threatened to foreclose. Following the directions of Manor Mortgage Company, the Pigloskis incorporated themselves and signed a wrap-around mortgage and note to Maxine Wynn. The parties dispute the amount owed on the note, and the Pigloskis claim that it is actually usurious. In any event, the Pigloskis failed to make mortgage payments to Maxine Wynn. Mrs. Wynn commenced foreclosure by advertisement under Michigan law in October 1981, and a sheriff’s sale was held on November 20, 1981. On April 30, 1982, before the statutory redemption period expired, the Pigloskis filed a Chapter 13 petition and plan. Under their plan, the Pigloskis proposed to pay, over a period of two and one half years, all the amounts they believed were legally due and owing to Mrs. Wynn. The Pigloskis also filed a motion for a stay order tolling the redemption period. The bankruptcy court eventually held that it had no authority to toll the statutory redemption period. The Pigloskis appealed the decision to the district court. Judge Boyle held that the automatic stay of 11 U.S.C. § 362(a) does not toll the statutory redemption period and that 11 U.S.C. § 105 does not authorize a bankruptcy court to toll the redemption period. Judge Boyle also held that a foreclosure sale extinguishes the mortgage and, as a result, is not subject to cure under section 1322(b)(5). II. 11 U.S.C. § 1322(b) outlines the permissible contents of a wage earner plan under Chapter 13 of the Bankruptcy Code. The relevant portions of that section provide: (b) Subject to subsections (a) and (c) of this section, the plan may— (2) modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims; (3) provide for the curing or waiving of any default; (5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due; The mortgagees do not dispute that subsection (b)(5) permits a Chapter 13 debtor to cure a default on a long-term mortgage on the debtor’s principal residence. However, they contend that once the long-term debt has been accelerated, or a foreclosure judgment has been obtained, or a foreclosure sale has occurred, the claim is no longer one “on which the last payment is due after the date on which the final payment under the plan is due” and, therefore, is not subject to cure under subsection (b)(5). Moreover, they argue that allowing the debtor to cure the default and reinstate the terms of the mortgage after any of these events would violate the language of subsection (b)(2), which prohibits modification of the rights of holders of claims “secured only by a security interest in real property that is the debtor’s principal residence.” The courts disagree over whether and under what circumstances section 1322(b) allows a cure once a default on a mortgage has triggered acceleration of the debt, a judgment or a sale. The bankruptcy court in In re Ivory, 32 B.R. 788 (Bankr.D.Or. 1983), grouped the differing viewpoints into the following general categories: (1) Courts that hold that a debtor may not cure a default once a mortgage debt has been accelerated: In re Wilson, 11 B.R. 986 (Bkrtcy.S.D.N.Y.1981); Matter of LaPaglia, 8 B.R. 937 (Bkrtcy.E.D.N.Y. 1981); In re Allen, 17 B.R. 119, 8 B.C.D. 945 (Bkrtcy.N.D.Ohio 1981). (2) Courts that hold that a debtor may cure a default where the mortgage debt has been accelerated provided that no foreclosure judgment has been entered: Percy Wilson Mortgage & Finance Corp. v. McCurdy, 21 B.R. 535 (Bkrtcy.S.D.Ohio W.D.1982); In re Maiorino, 15 B.R. 254 (Bkrtcy.D.Conn.1981); In re Pearson, 10 B.R. 189 (Bkrtcy.E.D.N.Y. 1981). (3) Courts [that] hold that a debtor may cure a default where a state court judgment of foreclosure has been entered provided that no sale has taken place: In re Acevedo, 26 B.R. 994 (D.E.D.N.Y.1982); In re James, 20 B.R. 145, 9 B.C.D. 208 (Bkrtcy.E.D.Mich.1982); In re Brantley, 6 B.R. 178 (Bkrtcy.N.D.Fla. 1980). (4) Courts that place no express limitation on the debtor’s right to cure a default after acceleration: In re Taddeo, 685 F.2d 24 (2nd Cir.1982); In re Sapp, 11 B.R. 188 (Bkrtcy.S.D.Ohio E.D.1981); In re Davis, 16 B.R. 473 (D.Kan.1981). Or after a judgment has been entered: In re Young, 22 B.R. 620 (Bkrtey.N.D.Ill.E.D.1982); In re Breuer, 4 B.R. 499, 6 B.C.D. 136 (Bkrtcy.S.D.N.Y.1980). (5) Courts that hold that a debtor may cure a default where a foreclosure sale has been held provided that the debtor’s right of redemption under state law has not expired: In re Johnson, 29 B.R. 104 (Bkrtcy.S.D.Fla.1983); In re Chambers, 27 B.R. 687 (Bkrtcy.S.D.Fla.1983); In re Taylor, 21 B.R. 179 (Bkrtcy.W.D.Mo. 1982); In re Thompson, 17 B.R. 748 (Bkrtcy.W.D.Mich.1982). 32 B.R. at 790. To the fourth group we add the following recent opinions by the Fifth and Seventh Circuits: Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir.1984) (en banc) (holding that a debtor may cure a default after acceleration, but expressing no limit on the right); Matter of Clark, 738 F.2d 869 (7th Cir.1984) (holding that a debtor may cure a default after a judgment of foreclosure that does no more than judicially confirm the acceleration Under state law, but expressing no opinion whether the right to cure survives a sale or a judgment of foreclosure in states where the effect of the judgment is different). Most courts agree that section 1322(b)(5) allows the debtor to cure a default when the mortgagee has not yet accelerated the debt, see, e.g., In re Pearson, 10 B.R. at 193; In re Hartford, 7 B.R. 914 (Bankr.D. Me. 1981), and that the debtor may not reinstate the mortgage if the bankruptcy petition is filed after the state redemption period has expired, see, e.g., In re Ivory, 33 B.R. at 791; In re Thompson, 17 B.R. at 751. The legislative history of section 1322(b) is ambiguous about the scope of the right afforded the debtor to cure a mortgage default. To encourage consumer debtor rehabilitation rather than liquidation, Congress designed Chapter 13 of the Bankruptcy Code to provide greater relief than was available under the former Bankruptcy Act. H.R.Rep. No. 595, 95th Cong., 1st Sess. 116-17 (1977), reprinted in 1978 U.S. Code Cong. & Ad.News 5787, 5963, 6076-78. The House Report further explains the chapter’s general purpose: The purpose of chapter 13 is to enable an individual, under court supervision and protection, to develop and perform under a plan for the repayment of his debts over an extended period. In some cases, the plan will call for full repayment. In others, it may offer creditors a percentage of their claims in full settlement. During the repayment period, creditors may not harrass [sic] the debtor or seek to collect their debts. They must receive payments only under the plan. This protection relieves the debtor from indirect and direct pressures from creditors, and enables him to support himself and his dependents while repaying his creditors at the same time. The benefit to the debtor of developing a plan of repayment under chapter 13, rather than opting for liquidation under chapter 7, is that it permits the debtor to protect his assets. In a liquidation case, the debtor must surrender his nonexempt assets for liquidation and sale by the trustee. Under chapter 13, the debtor may retain his property by agreeing to repay his creditors. Chapter 13 also protects a debtor’s credit standing far better than a straight bankruptcy, because he is viewed by the credit industry as a better risk. In addition, it satisfies many debtors’ desire to avoid the stigma attached to straight bankruptcy and to retain the pride attendant on being able to meet one’s obligations. The benefit to creditors is self-evident: their losses will be significantly less than if their debtors opt for straight bankruptcy. Id. at 118, U.S.Code Cong. & Admin.News 1978, p. 6079. One of the significant specific changes introduced by Congress in the new legislation was to allow modification of the contract rights of secured creditors under a Chapter 13 plan. H.R.Rep., supra, at 124; Bankruptcy Laws Commission’s Report, H.R.Doc. 137, pt. 2, 93rd Cong., 1st Sess. 205 (1973). Nevertheless, it is evident upon examining the final language of section 1322(b)(2) that Congress contemplated a different treatment of debts secured only by mortgages on the debtor’s principal residence. One would think that when trying to liberalize the relief to debtors under Chapter 13, Congress would be particularly solicitous of the individual wage earner’s ability to save his home. However, it is apparent from the language of section 1322(b) that Congress intended to give a preferred status to certain types of home mortgagees and lienholders, a policy which at first blush would seem at odds with the general thrust of the new act. The question naturally arises: why? The legislative history says little in terms of political or social philosophy as such. However, it does reveal that the final language of section 1322(b) evolved from earlier language, incorporated in the bill apparently at the behest of representatives of the mortgage market, that would have prohibited modification of the rights of all creditors whose claims were wholly secured by mortgages on real property. Although the earlier language did not survive, the statute as finally enacted by Congress clearly evidences a concern with the possible effects the new bankruptcy act might have upon the market for homes. If any other policy objective of Congress was adequate to compete against the objective of protecting wage earners generally, it was a policy to encourage the increased production of homes and to encourage private individual ownership of homes as a traditional and important value in American life. Congress had to face the reality that in a relatively free society, market forces and the profit motive play a vital role in determining how investment capital will be employed. Every protection Congress might grant a homeowner at the expense of the holders of security interests on those homes would decrease the attractiveness of home mortgages as investment opportunities. And as home mortgages decrease in attractiveness, the pool of money available for new home construction and finance shrinks. On the other hand, Congress was determined not to depart too far from its expressed policy of making wage earner plans more attractive to debtors, especially as an alternative to full bankruptcy proceedings under Chapter 7. Therefore, the preferred status granted some creditors under section 1322(b)(2) was limited to holders of claims secured only by a security interest in the debtor’s principal residence. No preferential treatment was given debts secured by property in addition to the debt- or’s principal residence. Such debts normally are incurred to make consumer purchases unrelated to the home or to enable the debtor to engage in some form of business adventure. In such circumstances the home is mortgaged not for its own sake, but for other purposes, and often is only one of several forms of security given. In a consumer purchase the creditor may also take a security interest in the goods purchased, or in a business transaction, the value of the home may be an insufficient security and, therefore, form only a part of the security package. Congress granted no extra protection for holders of these types of secured claims, presumably because any impact the bankruptcy laws might have upon them would not seriously affect the money market for home construction or purchase. Furthermore, in sections 1322(b)(3) and (5), which permit the debtor’s Chapter 13 plan to cure defaults, Congress provided no special exceptions for creditors whose claims are secured by a security interest in the debtor’s residence. Congress expressly provided that subsection (b)(5), which allows the debtor to cure any default on mortgages that extended beyond the life of the Chapter 13 plan, is to operate “notwithstanding paragraph (2) of this subsection.” We wish Congress had spoken its specific intent more clearly with respect to cases involving acceleration, judgments, or sales. It did not but instead saw fit to speak only in broad terms. As is so obvious from the broad range of the cited lower court decisions, any particular result often reflects the value judgment of the particular court as to which of the two competing values should predominate, or at least which is more attractive under the specific facts of the case at hand. All courts agree that at some point in the foreclosure process, the right to cure a default is irretrievably lost; however, the statute itself provides no clear cut-off point except that which the courts may see fit to create. The closer that point of finality is to the beginning of the process, the greater is the protection accorded the mortgage holder, and, hence, the more attractive the home mortgage becomes as an investment. Conversely, the further down the line the court can reach to protect the debtor from the consequences of his default, the better the debt- or’s needs are met by the Chapter 13 proceedings, and the more attractive those proceedings become to such debtors. We despair of finding any clear-cut statutory language or legislative history that points unerringly to a construction of the statute that is free from challenge. Each of the cases and each result reached therein is subject to some objection either in theory or in practice. The result we reach here is, therefore, primarily a pragmatic one — one that we believe not only works the least violence to the competing concerns evident in the language of the statute but also one that is most readily capable of use. The event we choose as the cut-off date of the statutory right to cure defaults is the sale of the mortgaged premises. We pick this in preference to a number of other potential points in the progress of events ranging from the date of first default to the day the redemption period expires following sale. We do so for the following reasons, which admittedly may form a large target for criticism: (a) The language of the statute is, to us, plainly a compromise, as we have earlier mentioned. Picking a date between the two extremes, is likewise a compromise of sorts. (b) The sale of the mortgaged property is an event that all forms of foreclosure, however denominated, seem to have in common. Whether foreclosure is by judicial proceeding or by advertisement, and regardless of when original acceleration is deemed to have occurred, the date of sale is a measurable, identifiable event of importance in the relationship of the parties. It is at the heart of realization of the security. (c) Although the purchaser at the sale is frequently the security holder itself, the sale introduces a new element— the change of ownership and, hence, the change of expectations — into the relationship which previously existed. (d) The foreclosure sale normally comes only after considerable notice giving the debtor opportunity to take action by seeking alternative financing or by negotiating to cure the default or by taking advantage of the benefits of Chapter 13. Therefore, setting the date of sale as the cut-off point avoids most of what some courts have described as the “unseemly race to the courthouse.” Concededly no scheme can avoid that possibility altogether, but the time and notice requirements incident to most sales at least provide breathing room and should deter precipitate action that might be expected if the cut-off date were measured by the fact of notice of acceleration or the fact of filing suit. (e) Any earlier date meets with the complaint that the rights conferred by the statute upon debtors to cure defaults have been frustrated. (f) Any later date meets with the objection that it largely obliterates the protection Congress intended for mortgagees of private homes as distinguished from other secured lenders. (g) Any later date also brings with it the very serious danger that bidding at the sale itself, which should be arranged so as to yield the most attractive price, will be chilled; potential bidders may be discouraged if they cannot ascertain when, if ever, their interest will become finalized. In so ruling we avoid any effort to analyze the transaction in terms of state property law. Modern practice varies so much from state to state that any effort to satisfy the existing concepts in one state may only create confusion in the next. Thus, in construing this federal statute, we think it unnecessary to justify our construction by holding that the sale “extinguishes” or “satisfies” the mortgage or the lien, or that the mortgage is somehow “merged” in the judgment or in the deed of sale under state law. III. A. Section 362(a) — Automatic Stay The debtors in Miller and Pigloski argue that the automatic stay provisions of 11 U.S.C. § 362(a) operate to toll the running of the statutory period for redeeming real estate sold at a foreclosure sale. Section 362(a) provides in pertinent part: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U.S.C. 78eee(a)(3)), operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the" estate, of a judgment obtained before the commencement of the case under this title; (3) any act to obtain possession of property of the estate or of property from the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title; An oft-quoted excerpt from the legislative history of section 362(a) indicates the provision’s major purposes: The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors. Bankruptcy is designed to provide an orderly liquidation procedure under which all creditors are treated equally. A race of diligence by creditors for the debtor’s assets prevents that. H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6296-97. The district courts and bankruptcy courts disagree concerning whether the automatic stay provisions of section 362(a) toll state statutory foreclosure redemption periods. One line of cases has held that the limited automatic extension of time available under 11 U.S.C. § 108(b) precludes relief under section 362(a). Section 108(b) provides: (b) Except as provided in subsection (a) of this section, if applicable law, an order entered in a proceeding, or an agreement fixes a period within which the debtor or an individual protected under section 1301 of this title may file any pleading, demand, notice, or proof of claim or loss, cure a default, or perform any other similar act, and such period has not expired before the date of the filing of the petition, the trustee may only file, cure, or perform, as the case may be, before the later of— (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; and (2) 60 days after the order for relief. In Bank of Commonwealth v. Bevan, 13 B.R. 989 (E.D.Mich.1981), the mortgagor filed a petition for reorganization under Chapter 11 of the Bankruptcy Code following a foreclosure sale of his home. The bankruptcy court had entered an order pursuant to section 362(a), indefinitely extending the statutory redemption period. In reviewing the bankruptcy court’s order, the district court noted that “the language of § 362(a) fails to explicitly address the running of time periods,” id. at 992, while section 108 explicitly grants the trustee additional time in which to perform acts such as redemption. Reading the two sections together, the court held that the automatic stay provisions of section 362(a) do not override the extension of time provision in section 108(b). The court reasoned: An interpretation of § 362(a) as an indefinite stay of the statutory period of redemption would render § 108(b) superfluous. If § 362(a) automatically stays the running of the statutory right to redeem until the stay is lifted pursuant to § 362(c) or (d), the pertinent time allotments of § 108(b) are completely extraneous as statutory time periods designed to control the trustee’s activity. Moreover, if § 362(a) is interpreted to provide for the automatic stay of time periods for an indefinite amount of time, then subsections (a) and (b) of § 108, which define minimum and maximum time periods for the trustee to act, directly conflict with § 362(a). Id. at 994. The court concluded that “where one section of the Bankruptcy Code explicitly governs an issue, another section should not be interpreted to cause an irreconcilable conflict.” Id. Several courts have agreed with the Elevan court’s interpretation of sections 108(b) and 362(a). See, e.g., Johnson v. First National Bank, 719 F.2d 270, 278 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984); In re Cucumber Creek Development, Inc., 33 B.R. 820 (D.Colo.1983); In re Martinson, 26 B.R. 648 (D.N.D.1983); Matter of Markee, 31 B.R. 429 (Bankr.D.Idaho 1983); In re Construction Leasing & Investment Corp., 20 B.R. 546 (Bankr.M.D.Fla.1982); In re Murphy, 22 B.R. 663 (Bankr.D.Colo. 1982) . In a recent case, the Bankruptcy Court for the Western District of Michigan considered whether the automatic stay of section 362(a) tolls the statutory redemption period in the context of Chapter 13. In re Wallace, 33 B.R. 29 (Bankr.W.D.Mich. 1983) . The debtor in Wallace had filed her Chapter 13 petition and plan following the foreclosure sale of her residence. In her plan, which was confirmed by the bankruptcy court, the debtor had proposed to make current payments on the mortgage on her residence outside the plan and to cure the default by making payments on the arrearage within the plan. When the debtor failed to make her payments under the plan, the bankruptcy case was dismissed. Approximately a month after the dismissal, the mortgagee notified the debt- or that the redemption period had expired and asked her to vacate the house. The debtor refused, and the mortgagee sought a declaratory judgment that it was entitled to immediate possession of the property. The debtor argued, inter alia, that the automatic stay of section 362(a) had tolled the redemption period until the stay terminated upon dismissal of the case. The bankruptcy judge noted his earlier decision in In re Thompson, 17 B.R. 748 (Bankr.W. D.Mich.1982), that a Chapter 13 debtor could cure an arrear 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_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. Milton JONES, Defendant-Appellant. No. 80-5184. United States Court of Appeals, Sixth Circuit. Argued Dec. 2, 1981. Decided Jan. 11, 1982. Walter C. Pookrum, Kenneth R. Sasse, Detroit, Mich., for defendant-appellant. James K. Robinson, U. S. Atty., F. William Soisson, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee. Before EDWARDS, Chief Judge, MARTIN and JONES, Circuit Judges. PER CURIAM. Appellant was indicted for aiding and abetting the interstate transportation of counterfeit securities in violation of 18 U.S.C. §§ 2 and 2314 and conspiring to counterfeit money in violation of 18 U.S.C. § 471. He was convicted on the conspiracy count only. The government presented very substantial evidence on the conspiracy charge which was admitted without objection to establish appellant’s guilt. The government also made use of a tape recording of a conversation between appellant and two state law enforcement officers for the purpose of cross-examining appellant concerning his direct testimony that he had not participated in any conspiracy to counterfeit money. Our review of this record disclosed that appellant himself made the approach to the officers concerned, knew that his statements were being tape recorded and received no promise of immunity. See United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980). Finding no reversible error, the judgments of convictions are affirmed, Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. PAN AMERICAN REALTY TRUST v. TWENTY ONE KINGS, INC., Appellant. DE LEO ASSOCIATES COMPANY v. TWENTY ONE KINGS, INC., Appellant. Nos. 17386, 17387. United States Court of Appeals Third Circuit. Argued Jan. 30, 1969. Decided March 24, 1969. John D. Marsh, Christiansted, V. I., for appellant. Ronald H. Tonkin, James, Hodge & Tonkin, Christiansted, V. I., for ap-pellees. Before FREEDMAN, VAN DUSEN and ALDISERT, Circuit Judges. OPINION OF THE COURT PER CURIAM: Defendant (appellant) challenges judgments entered February 5, 1968, in two civil actions, which were consolidated for trial to the court, contending that the trial judge incorrectly interpreted separate building and architectural contracts under which plaintiffs had rendered the services for which they recovered on a quantum meruit basis. Pan American Realty Trust recovered a judgment of $27,823.14 for engineering services and expenses, with interest from April 12, 1966, an attorney’s fee of $2,500., and costs. The judgment for De Leo Associates Company was for architectural services and expenses in the amount of $30,196.75, with interest from April 12, 1966, an attorney’s fee of $2,500., and costs. I. No. 17,386 The building contract was dated December 3,1965, and provided for payment “in current funds” of costs of construction of an Apartment-Office and Underground Parking Building, plus a fee of $35,000., by the defendant-owner. Articles 13 and 14 provided: “The Contractor shall, between the first and seventh of each month, deliver to the Architect a statement, sworn to if required, showing in detail and as completely as possible all moneys paid out by him on account of the cost of the work during the previous month for which he is to be reimbursed * * . ***** “The Architect shall check the Contractor’s statements of moneys due, * * * and shall promptly issue certificates to the Owner for all such as he approves, which certificates shall be payable on issuance.” A rider to this contract, executed the same day, specified that “The contractor agrees to supply all additional funds needed to complete the job that is not raised by a first mortgage, * * * [which funds were to] be advanced at the beginning of the job.” A second rider dated December 8, 1965 specified that “The contractor shall commence with the work under the main contract without undue delay.” The defendant-owner never secured the first mortgage contemplated by the contract and unilaterally cancelled the contract on April 12, 1966. Meanwhile, the contractor had rendered the services- and incurred the expenses comprising the $27,823.14 described above. Construing the above documents together in Pan American Realty Trust v. Twenty One Kings, Inc., V.I., - F.Supp. - (1968), the trial judge: “ * * * concluded that until the owner had secured a commitment for a first mortgage loan the contractor was not obligated to advance the additional funds beyond that loan which would be needed to complete the building contract. For, until that event occurred, it would not be possible to know what amount of additional funds would be needed. But if, and when, a first mortgage commitment was secured the plaintiff contractor could know exactly how much additional money had to be put up and then could proceed to do so. * ***** “ * * a cardinai principle governing the construction of contracts is that the entire contract must be considered and, as between possible interpretations of ambiguous provisions, that will be chosen which best accords with the sense of the remainder of the contract. A written contract is to be construed so as to give effect to all of its parts, and any construction which would render the agreement meaningless should be avoided. * * * [Tjhese obligations of the contractor were conditioned upon the prior procurement by the defendant of a commitment for a first mortgage loan. To accept the defendant’s view would be to render the contract unworkable and meaningless. The defendant, having been unable to secure the contemplated first mortgage commitment, did not perform its part of the contract, and thereby discharged the plaintiff from the duty of further performance by the impossibility of rendering it. * * * [T]he plaintiff contractor, upon notification from the defendant under date of April 12, 1966 to ‘do nothing further under the provisions of this contract’ was entitled to treat the contract as absolutely and finally broken by the defendant. * * * Accordingly upon the defendant’s re-cission of the construction contract the plaintiff was entitled to recover the money it had actually expended and for the services it had actually performed.” After careful consideration of the record and the contentions of defendant, we have decided that the judgment should be affirmed for all the reasons stated by the trial judge. II. No. 17,887 The architectural contract, dated February 26, 1965, provided for a fee not to exceed $15,000. plus expenses of personnel, including consultants for surveys, soil tests, auditing, etc., as well as reimbursable transportation and living expenses. Most of the work done under this contract, as amended, was completed prior to the execution of the building contract in December 1965. In the above-mentioned rider dated December 8, 1965, defendant agreed that “$14,500 more or less” of the architect’s fee was unpaid and that expenses were due the architect, which sums then due were to be paid by defendant “during construction.” This rider also provided “First monies paid by financial institution financing construction shall be allocated to architects fees.” For the reasons stated under I above and those in the findings, conclusions and April 29, 1968, opinion of the trial judge, the record justifies the trial judge’s conclusion that the failure of the defendant to raise the first mortgage money, which it had agreed to use to pay the architect, did not relieve it from liability for the expenses incurred, and fees earned, by the architect before the unilateral cancellation of the contract by defendant on April 12, 1966. The judgments entered February 5, 1968, will be affirmed. . This rider read as follows: “In consideration of the mutual promises flowing between the parties hereto and the consideration in the main contract it is mutually agreed as follows: “1. The contractor agrees to supply all additional funds needed to complete the job that is not raised by a first mortgage. “2. As security for said funds so advanced the contractor agrees to accept and the owner agrees to execute a second mortgage for the amount so advanced. Said second mortgage shall bear interest at same percent charged by bank and be payable at $300.00 per month, inclusive of interest, for a period of five (5). years. Said mortgage may be prepaid at any pay period in multiples of $300.00, without penalty. “3. Said mortgage shall be executed and delivered at the completion of the job when it has been determined what the amount of the mortgage is to be. Also, said mortgage will be executed and delivered after the bank has executed and filed its mortgage. “4. The contractor agrees to retain William C. Raines during the duration of this job for coordinating and doing legal work. The salary for said William C. Raines shall be $200.00 per month, and is to commence upon notice by William C. Raines to the Contractor. “5. Since bank funds will not be released until the job has progressed to a certain stage, it is agreed by the contractor that the funds to be advanced as herein outlined shall be advanced at the beginning of the job. “6. The contractor agrees to proceed with this job immediately.” . Other terms of this rider contemplating payment by the first mortgagee of amounts due the architect on December 8, 1965, are referred to under II, below. . The trial judge found that the defendant made false representations to a financial institution in order to persuade it to commit itself to a first mortgage. The testimony discloses that these representations included a false statement that $200,000. had been released to Pan American for materials to be stockpiled and that an officer of the plaintiff advised this institution that the above representations were false (Exhibits P-10 — P-14). Shortly thereafter (within a month), the contract was cancelled by defendant. Since the President and sole stockholder of defendant, who testified that “I am Twenty One Kings”, admitted at least once during the trial that he had testified inaccurately, the trial judge would have been justified in rejecting his testimony. . This reasoning is in accord with the following language of § 235(c) of the Restatement of Contracts, relied on inter alia by defendant: “A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together.” See New Wrinkle, Inc. v. John L. Armitage & Co., 238 F.2d 753, 757 (3rd Cir. 1956) ; cf. The Kronprinzessin Cecilie, 244 U.S. 12, 24, 37 S.Ct. 490, 492, 61 L.Ed. 960 (1917), where the court said: “Business contracts must be construed with business sense, as they naturally would be understood by intelligent men of affairs.” . See, also, findings and conclusions of January 25, 1968. . Since defendant’s action in failing to get the first mortgage (particularly in its misrepresentations making it difficult to obtain such mortgage — see footnote 3) and its unilateral cancellation of the building contract were a total breach of both contracts, § 347 of the Restatement of Contracts specifies the applicable measure of damages as follows: “(1) * * * the injured party can get judgment for the reasonable value of a performance rendered by him, measured as of the time it was rendered, * * * if the performance so rendered was (a) a part or all of a performance for which the defendant bargained; * * * ¡b ¡I- ¡I- “(2) Interest at the legal rate, on the value of the performance as to which restitution in money is adjudged, may be given from the date of receipt of the performance.” Comments b and c of § 347 include this language: “b. * * * In granting restitution as a remedy for breach, however, the purpose to be attained is the restoration of the injured party to as good a position as that occupied by him before the contract was made. * * * [I]n the great majority of cases this remedy merely requires a payment in money by the defendant of the value of the consideration received by him from the plaintiff as a part or full performance of the contract. The consideration so received may be of any kind, commonly consisting of services rendered, * * . “c. If the plaintiff’s performance is part of the very performance for which the defendant bargained as part of an agreed exchange, it is to be valued, not by the extent to which the defendant’s total wealth has been increased thereby, but by the amount for which such services and materials as constituted the part performance could have been purchased from one in the plaintiff’s position at the time they were rendered.” Section 468(1)- of the Restatement of Contracts, cited by the learned trial judge, is an application of the basic principle stated in the above-quoted § 347 (1). Section 468(3) and the comment thereon (d), relied on by defendant, applies where there has been “no fault on either side,” which is not the situation presented in this record. The language in most of the sections of Chapter 14 of the Restatement of Contracts governing Impossibility makes clear that the rules there stated apply “in the absence of * * contributing fault on the part of the person subject to the duty” (or “of the promissor”). See §§ 458-461. . Additional work was required of the architect by changes in the owner’s plans made in August 1965. Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. Answer:
songer_r_natpr	4	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. Edmund J. MURPHY, Charles A. Nolan, Jr., Dominick J. Eadicicco and James F. Connell, Jr., Plaintiffs-Appellees, v. COLONIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Curtis E. Neumann, Louis Corread, Frederick S. Forde, Charles De Nisco and Joseph Conti, Defendants-Appellants. No. 185, Docket 31738. United States Court of Appeals Second Circuit. Argued Oct. 26, 1967. Decided Dec. 11, 1967. Daniel McNamara, Brooklyn, N.Y., for defendants-appellants. Marshall G. Kaplan, Brooklyn, N.Y., for plaintiffs-appellees. Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges. FRIENDLY, Circuit Judge: The complaint in this action in the District Court for the Eastern District of New York, petitioning for a declaratory judgment and appropriate further relief, 28 U.S.C. §§ 2201, 2202 centers around management’s refusal to provide a dissident group with a list of persons eligible to vote for directorships in a federal savings and loan association. The plaintiffs allege that they are “shareholder-depositors” in the defendant, Colonial Federal Savings and Loan Association ; that each of them was nominated for director on January 7, 1966; that a demand was made upon the association for a list of persons eligible to vote at the annual meeting on January 19; that the demand was ignored, a motion for adjournment was denied, and the directors proposed by the management were elected and certified. The Association moved to dismiss for lack of federal jurisdiction and failure to state a claim on which relief could be granted; plaintiffs then amended their complaint to add the directors elected at the meeting as defendants and in other respects not here material. Chief Judge Zavatt denied the motion to dismiss but stayed the action pending an ápplication by plaintiffs to the Federal Home Loan Bank Board for an administrative determination pursuant to 12 U. S.C. § 1464(d) (2) (A). On January 16, 1967, the Home Loan Bank Board adopted a resolution denying the application. A letter from its Assistant Secretary approved by the Board explained this on the highly technical — we are tempted to say hypertech-nical — ground that although plaintiffs’ right to inspect the list had been judicially established in a case pending in the New York courts at the time of the election and finally determined a month thereafter, Murphy v. Colonial Federal Savings and Loan Ass’n, 17 N.Y.2d 593, 268 N.Y.S.2d 348, 215 N.E.2d 525 (1966); see also Ochs v. Washington Heights Federal Savings and Loan Ass’n, 17 N.Y.2d 82, 268 N.Y.S.2d 294, 215 N.E.2d 485 (1966), the gravamen of their petition to the Board was not that “a right to inspect was sought or denied” but that “a demand was made for a list and was denied,” see fn. 2 infra. Nothing daunted, plaintiffs moved for summary judgment. Judge Dooling granted the motion, holding that the complaint raised a question arising under the laws of the United States, 28 U.S.C. § 1331; that the election was unfair because of the denial of plaintiffs’ right to be informed of the electorate; and that the negative action of the Home Loan Bank Board did not bar judicial relief. Properly taking note of the problem of jurisdictional amount which apparently had not been raised by anyone, he thought that “perhaps, it sufficiently appears since the matter in controversy is the right to participate ^effectively in the governance of the Association. Cf. Wahyou v. Central Valley National Bank, 9th Cir. 1966, 361 F.2d 755.” 12 U.S.C. § 1464(a) authorizes the Federal Home Loan Bank Board to provide for the organization and operation of federal savings and loan associations “under such rules and regulations as it may prescribe.” The Board’s regulations, 12 C.F.R. § 544.1(4), provide that members may vote in person or by proxy. Question naturally arises whether a member desiring to enlist the aid of others in an election is entitled to find out who they are. Such an issue, which requires a fleshing out of the Board’s regulations, is one of federal law. Cf. Illinois Steel Co. v. B. & O. R.R., 320 U.S. 508, 510, 64 S.Ct. 322, 88 L.Ed. 259 (1944); Federal Reserve Bank etc. v. Atlanta Trust Co., 91 F.2d 283, 285, 117 A.L.R. 1160 (5 Cir. 1937); Durnin v. Allentown Federal Savings and Loan Ass’n, 218 F.Supp. 716 (E.D.Pa.1963). This would become readily apparent if the common law of the state where the association operated denied members a right of inspection; Congress could hardly have intended that the rights of members of federal savings and loan associations to fair elections should vary with quirks of local law. Appellants are mistaken in contending that federal jurisdiction is forbidden by 28 U.S.C. § 1349 providing that: “The district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock.” Although on a strictly literal approach, any controversy concerning the interpretation of a federal statute or regulation governing the internal affairs of a federal corporation could be said to be grounded upon federal incorporation, such cases were not at all the “mischief and defect” at which the statute, § 12 of the Judges’ Bill of 1925, 43 Stat. 936, 941, was aimed. The purpose rather was to stem “the flood of litigation to which the federal courts were * * * subjected” as a result of the decision in Pacific Railroad Removal Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885), that every action by or against a federal corporation presented a federal question, see Hart & Wechsler, The Federal Courts and the Federal System, pp. 730, 752 (1953), by generalizing the earlier legislation, 38 Stat. 803 (1915), which had prohibited railway corporations from resorting to the federal courts because of a federal charter. As Mr. Justice Van Devanter explained to the Senate Judiciary Committee, the bill extended “the railroad section so as to cover any kind of Federal corporation. If there happens to be some other ground for taking the case into a federal court, it can go there. But federal incorporation alone is not enough.” Frankfurter & Landis, The Business of the Supreme Court, 272-273, fn. 55 (1927). It is immaterial that the state courts also may deal with the internal affairs of federal savings and loan associations, as the New York courts did in the cases cited above; when they do this, they are nonetheless applying federal law. See Local 174, Teamsters etc. V. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). Since the district court was plainly right in holding that an election of directors in which the opposition is deprived of any reasonable opportunity to ascertain the names and addresses of electors known to the management was unfair under federal law, we pass to appellants’ contention that the Home Loan Bank Board’s resolution denying the petition precluded judicial- relief. Chief Judge Zavatt properly stayed the action pending application to the Board under 12 U.S.C. § 1464(d) (2) (A), when he found that this recently enacted provision authorized the agency to issue a notice of charges both in the case of the election, compare Reich v. Webb, 336 F.2d 153 (9 Cir. 1964), and in that of the refusal to allow inspection of a membership list. Far East Conference v. United States, 342 U.S. 570, 574-575, 72 S.Ct. 492, 96 L. Ed. 576 (1952). But this section permits the Board to use its discretion in deciding whether or not to act on an application for relief, and does not suggest that its refusal to issue a notice of charges would prevent a complainant from seeking judicial relief that would be otherwise obtainable. The argument that the plaintiffs are barred thus must rest on a eon-struction of two other parts of § 1464 also enacted in 1966. Section 1464(d) (7) (B), quoted in the margin, provides for review of the Board’s cease and desist orders in the courts of appeals, but is silent as to review of the Board’s refusal to institute a proceeding, and § 1464(d) (8) states that “except as otherwise provided in this subsection no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this subsection, or to review, modify, suspend, terminate, or set aside any such notice or order.” Although both provisions regulate judicial review only when the Board has issued a cease and desist order, Colonial’s argument would require us to infer from this statutory framework a congressional intention to preclude citizens from exercising their ordinary judicial remedies. The impropriety of any such construction appears a fortiori from decisions that provision for review of certain types of federal administrative action does not without more prevent review of other types under the general equity jurisdiction of the district courts. Stark v. Wickard, 321 U.S. 288, 307-308, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Toilet Goods Ass’n v. Gardner, 360 F.2d 677, 683-684 (2 Cir. 1966), aff’d 387 U.S. 167,87 S.Ct. 1526,18 L.Ed.2d 704 (1967), and Abbott Laboratories v. Gardner, 387 U.S. 136, 139-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); cf. Fahey v. Mallonee, 332 U.S. 245, 256, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947). Moreover, a consideration of the legislative history of the Financial Institutions Supervisory Act, of which the amendments were a part, demonstrates that the proposed interpretation would be inconsistent with the reasons for enactment of the statute. That history makes Congress’ central concern clear — “The Federal supervisory agencies in varying degrees have been seriously handicapped in their efforts to prevent irresponsible and undesirable practices by deficiencies in the statutory remedies. Experience has often demonstrated that the remedies now available to the Federal supervisory agencies are not only too drastic for use in many cases, but are also too cumbersome to bring about prompt correction and promptness is very often vitally important.” Sen.Rep. No. 1482, 89th Cong., 2d Sess. (1966), 3 U.S.Code Cong. & Ad.News, pp. 3532, 3537(1966). With the need for speed in view, Congress carefully limited the occasions on which judicial control of administrative action was procurable, see also 12 U.S.C. § 1464(d) (3) (B). Its effort to create an effective system of sanctions would be hampered rather than forwarded by reading these provisions to paralyze the judiciary when the agency has refused to act. The question of jurisdictional amount is more difficult than the judge thought. For reasons indicated in the margin, if 28 U.S.C. § 1331 were the only source of federal jurisdiction, we should be obliged to remand for further findings, as we did in Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 826 (2 Cir. 1967), whether the requisite monetary interest could be shown. However, 28 U.S.C. § 1337, which does not require a monetary minimum in “any proceeding arising under any Act of Congress regulating commerce,” provides an alternative source of jurisdiction. As stated in Professor Bunn’s influential book on Jurisdiction and Practice of the Courts of the United States 71-72 (1949), although when “the words were used in 1911 ‘acts regulating commerce’ pretty clearly meant ‘The Act to Regulate Commerce,’ ” the phrase had come to mean “all acts whose constitutional basis is the commerce clause.” See Imm v. Union Railroad Co., 289 F.2d 858 (3d Cir, 1961) (Goodrich, J.), citing many decisions of the past several decades, see 289 F.2d at 860 fn. 3. Commentators have unanimously approved this liberal construction, since the amount involved is normally of little relevance to the desirability of federal jurisdiction in federal question cases. See ALI Study of the Division of Jurisdiction Between State and Federal Courts 200-203 (4th tent, draft 1966); Wright, Federal Courts 92 (1963); Friedenthal, New Limitations on Federal Jurisdiction, 11 Stan.L.Rev. 213, 217-218 (1959); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law and Contemporary Problems 216, 225-26 (1948). The broad construction that had been given § 1337 was inferentially approved by the 1958 Congress that raised the jurisdictional amount in federal question and diversity cases to $10,000 — “While this bill applies the $10,000 minimum limitation to cases involving Federal questions, its effect will be greater on diversity cases since many of the so-called Federal question cases will be exempt from its provisions. This is for the reason that Federal courts are expressly given original jurisdiction without limitation as to the amount claimed in a great many areas of Federal law. * * * When all of these types of cases are eliminated, the only significant categories of ‘Federal question’ cases subject to the jurisdictional amount are suits under the Jones Act and suits contesting the constitutionality of State statutes. In both of these types of cases the amount claime4 usually exceeds $10,000.” S.Rep. No. 1830, 85th Cong., 2d Sess., 2 U.S.Code Cong & Ad.News 3099, 3103 (1958). It is true that federal regulation of finance is not grounded in the commerce power alone. As Chief Justice Hughes explained in Norman v. B. & O. R. R., 294 U.S. 240, 303, 55 S.Ct. 407, 414, 79 L.Ed. 885 (1935): The broad and comprehensive national authority over the subjects of revenue, finance and currency is derived from the aggregate of the powers granted to the Congress, embracing the powers to lay and collect taxes, to borrow money, to regulate commerce with foreign nations and among the several states, to coin money, regulate the value thereof, and of foreign coin, and fix the standards of weights and measures, and the added express power “to make all laws which shall be necessary and proper for carrying into execution” the other enumerated powers. See also McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 406, 4 L.Ed. 579 (1819). But to found jurisdiction upon § 1337, it is not requisite that the commerce clause be the exclusive source of Federal power; it suffices that it be a significant one. And whether or not a distinction between §§ 1331 and 1337 is called for when the federal law invoked as a basis for jurisdiction is wholly non-statutory save in the sense that the authority for its creation lies in the Constitution, a treaty, or act of Congress — a point ventilated but not decided in T. B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2 Cir.), cert, denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965), and McFaddin Express, Inc. v. Adley Corp., 346 F.2d 424, 427 (2 Cir. 1965), cert, denied, 382 U.S. 1026, 86 S.Ct. 643, 15 L.Ed.2d 539 (1966) — here the federal law asserted as the basis for jurisdiction is a regulation adopted by a government agency under authority of an “Act of Congress.” The judgment is affirmed. . This provides: “If, in the opinion of the Board, an association is violating or has violated, or the Board has reasonable cause to believe that the association is about to violate, a law, rule, regulation, or charter or other condition imposed in writing by the Board in connection with the granting of any application or other request by the association, or written agreement entered into with the Board, or is engaging or has engaged, or the Board has reasonable cause to believe that the association is about to engage, in an unsafe or unsound practice, the Board may issue and serve upon the association a notice of charges in respect thereof. The notice shall contain a statement of the facts constituting the alleged violation or violations or the unsafe or unsound practice or practices, and shall fix a time and place at which a hearing will be held to determine whether an order to cease and desist therefrom should issue against the association. Such hearing shall be fixed for a date not earlier than thirty days nor later than sixty days after service of such notice unless an earlier or a later date is set by the Board at the request of the association. Unless the association shall appear at the hearing by a duly authorized representative, it shall be deemed to have consented to the issuance of the cease- and-desist order. In the event of such consent, or if upon the record made at any such hearing the Board shall find that any violation or unsafe or unsound practice specified in the notice of charges has been established, the Board may issue and serve upon the association an order to cease and desist from any such violation or practice. Such order may, by provisions which may be mandatory or otherwise, require the association and its directors, officers, employees, and agents to cease and desist from the same, and, further, to take affirmative action to correct the conditions resulting from any such violation or practice.” . Although appellants have made no point of it, we note that the judgment directed Colonial to furnish plaintiffs’ attorney with a list of member and borrower depositors eligible to vote. While the only right generally recognized at common law was to inspect the books, Guthrie v. Harkness, 199 U.S. 148, 26 S.Ct. 4, 50 L.Ed. 130 (1905), more than twenty states have passed “shareholder voting list statutes,” many modeled on § 29 of the Model Business Corporation Act, see Note, Shareholder Voting List Statutes — Are They Effective?, 26 U. of Cinn.L.Rev. 288 (1957). See also Rule 14a-7 under the Securities Exchange Act of 1934. It seems quite appropriate to adopt as “federal common law” a principle that has achieved such widespread recognition, see New York, N. H. & H. R.R. v. R. F. C., 180 F.2d 241, 244 (2 Cir. 1950); United States v. Wegematic Corp., 360 F.2d 674, 676 (2 Cir. 1966), as the right of a stockholder with a legitimate purpose to inspect a list available to management or, if he prefers, to have one furnished on paying the cost of making it. For reasons pointed out by the New York Court of Appeals in Ochs v. Washington Heights Federal Savings and Loan Ass’n, supra, 17 N.Y.2d at 87-88, 268 N.Y.S.2d at 298, 215 N.E.2d 485, the list procedure is peculiarly desirable in the case of savings and loan associations since inspection of the books themselves would disclose the financial affairs of depositor members. . The statement of the Board’s General Counsel as to its lack of power to do this, referred to in a footnote to Ochs v. Washington Heights Federal Savings & Loan Ass’n, supra, 17 N.Y.2d at 85, 268 N.Y.S.2d at 296, 215 N.E.2d 485, antedated the amendment, 80 Stat. 1028, 1029, giving the statute its present form. . “Any party to the proceeding, or any person required by an order issued under this subsection to cease and desist from any of the violations or practices stated therein, may obtain a review of any order served pursuant to subpara-graph (A) of this paragraph (other than an order issued with the consent of the association or the director or officer or other person concerned, or an order issued under paragraph (5) (A) of this subsection), by filing in the court of appeals of the United States for the circuit in which the home office of the association is located, or in the United States Court of Appeals for the District of Columbia Circuit, within thirty days after the date of service of such order, a written petition praying that the order of the Board be modified, terminated, or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Board, and thereupon the Board shall file in the court the record in the proceeding, as provided in section 2112 of title 28 [of the United States Code]. Upon the filing of such petition, such court shall have jurisdiction, which upon the filing of the record shall except as provided in the last sentence of said subparagraph (A) be exclusive, to affirm, modify, terminate, or set aside, in whole or in part, the order of the Board. Review of such proceedings shall be had as provided in chapter 7 of title 5 [of the United States Code]. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari as provided in section 1254 of title 28 [of the United States Code].” . The permissive and discretionary nature of the Board’s power under 12 U.S.C. § 1464(d) (2) (A) argues against a view, not here urged, that the remedy for refusal to issue a notice of charges lies in an action against the Board in the District Court under the analogy of United States v. Interstate Commerce Comm’n, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949). Compare cases denying such a remedy for refusal to issue charges by the General Counsel of the NLRB — Hourihan v. NLRB, 91 U.S.App.D.C. 316, 201 F.2d 187 (1952), cert denied 345 U.S. 930, 73 S.Ct. 792, 97 L.Ed. 1359 (1953); Retail Store Employees Union Local etc. v. Rothman, 112 U.S. App.D.C. 2, 298 F.2d 330 (1962) ; Division 1267, Amalgamated Ass’n etc. v. Ordman, 116 U.S.App.D.C. 7, 320 F.2d 729 (1963); NLRB v. Tennessee Prod’s & Chemical Corp., etc., 329 F.2d 873 (6 Cir.), cert, denied, 379 U.S. 833, 85 S.Ct. 66, 13 L.Ed.2d 42 (1964). It seems much more likely that Congress intended parties to be able to pursue their ordinary remedies in the courts, with the court having the Board’s reason for inaction before it and giving tlrs such weight as was considered appropriate. . If the complaint had contained a formal allegation that the matter in controversy exceeded $10,000 exclusive of interests and costs, as apparently it did in the Wahyou case on which the judge relied, see 361 F.2d at 756, and defendants had not “traversed” this, all would have been well since there were no allegations to “qualify or detract from it in such measure that when all are considered together it cannot be fairly said that jurisdiction appears on the face of the complaint * * KVOS, Inc. v. Associated Press, 299 U.S. 269, 277, 57 S.Ct. 197, 200, 81 L.Ed. 183 (1936). But here there was no such allegation — indeed not even a statement as to the amount of plaintiffs’ deposits or stock ownership— and, apart from the court’s own obligation to take note of the problem, the issue was thus sufficiently raised by defendant’s motion to dismiss for lack of “jurisdiction of the subject matter of this action.” We are unable to follow the judge’s belief that the required amount “sufficiently appears since the matter in controversy is the right to participate effectively in the governance of the Association,” since, as thus stated, the right is hardly susceptible of monetary measurement. See Whitney v. American Shipbuilding Co., 197 F. 777 (E.D.Ohio 1911) (Day, J.); 1 Moore, Federal Practice 110.92 [5]. In view of our disposition of the case, it is unnecessary to decide whether the plaintiffs would be required to show that the difference to the value of their membership between management of the association by themselves and by the defendants exceeded $10,000, as the strict theory of the “plaintiff viewpoint” rule would indicate, see Central Mexico Light & Power Co. v. Munch, 116 F.2d 85, 87 (2 Cir. 1940), but see Wright, Federal Courts, § 34, or whether it will suffice in cases such as this if plaintiffs, alone or with other members who may associate with them, see 1 Moore, Federal Practice $0.97 [3], can show an interest in the corporation worth more than the jurisdictional amount. Textron, Inc. v. American Woolen Co., 122 F.Supp. 305, 308-309 (D.Mass.1954) (Aldrich, J.); Rosen v. Alleghany Corp., 133 F.Supp. 858, 864 (S.D.N.Y.1955); cf. Bitterman v. L. & N. R.R., 207 U.S. 205, 224-226, 28 S.Ct. 91, 52 L.Ed. 171 (1907). . In Caulfield v. United States Department of Agriculture, 293 F.2d 217, 222 n. 10 (1961), dismissed 369 U.S. 858, 82 S.Ct. 946, 8 L.Ed.2d 16 (1962), the Fifth Circuit, en banc, adopted the “commerce clause” test in holding a suit under the Soil Bank Act to fall under § 1337. . Professor Wright has argued that, in spite of this legislative history, Jones Act suits fall within the scope of § 1337, Federal Courts, supra, 92; he also points out that many suits contesting the constitutionality of state statutes can be brought under provisions, notably 28 U.S.O. § 1343, having no jurisdictional amount. Wliat remains important is that Congress’ belief that very few federal question cases would be left under § 1331 must have assumed a continued broad construction of other sections. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appel1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. S. S. SILBERBLATT, INC. and The Sterling Company, Appellants, v. The RENEGOTIATION BOARD, Appellee. No. 517, Docket 33613. United States Court of Appeals, Second Circuit. Argued April 20, 1970. Decided May 5, 1970. Charles H. Tuttle, New York City (Breed, Abbott & Morgan, Edward J. Ross and Miriam C. Feigelson, New York City, of counsel), for appellants. Ronald R. Glancz, Atty., Dept, of Justice, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellee. Before MOORE and SMITH, Circuit Judges, and WEINFELD, District Judge. Of the Southern District of New York, sitting by designation. PER CURIAM. The decision of the Tax Court, holding (1) the provisions of the Renegotiation Act of 1951, as amended (50 U.S.C. App. § 1211 et seq.) to be applicable to excessive profits realized under a Capehart Act housing contract (42 U.S.C §§ 1594-1594k; 12 U.S.C. §§ 1748-1748h-3) and (2) such application to be constitutional, is affirmed on the opinion of Judge Mulroney, reported at 51 T.C. No. 89 (March 4, 1969). 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:
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. SECURITIES AND EXCHANGE COMMISSION v. CENTRAL-ILLINOIS SECURITIES CORP. et al. NO. 226. Argued January 12-13, 1949. Decided June 27, 1949. Roger S. Foster argued the cause for the Securities & Exchange Commission. With him on the brief were Solicitor General Perlman, Robert L. Stern, Harry G. Slater, Jerome S. Katzin and Myer Feldman. Lawrence R. Condon argued the cause for Streeter et al., petitioners in No. 227 and respondents in No. 266. With him on the brief was Milton Maurer. Francis H. Scheetz argued the cause and filed a brief for the Home Insurance Co. et al., petitioners in No. 243 and respondents in No. 266. Alfred Berman argued the cause for the Central-Illinois Securities Corp. et al., petitioners in No. 266 and respondents in Nos. 226, 227 and 243. With him on the brief were Abraham Shamos, J. Howard Rossbach, Philip W. Amram and Herbert L. Cobin. Louis Boehm argued the cause for White et al., respondents. With him on the brief was Raymond L. Wise. W. E. Tucker and Paul D. Miller were counsel for the Engineers Public Service Co. Mr. Justice Rutledge delivered the opinion of the Court. This case involves an amended plan filed under § 11 (e) of the Public Utility Holding Company Act of 1935 by Engineers Public Service Company. The plan provided, inter alia, for satisfying the claims of Engineers’ preferred stockholders in cash as a preliminary to distributing the remaining assets to common stockholders and dissolving the company. Broadly, the question is whether the Securities and Exchange Commission, in reviewing the plan, correctly applied the “fair and equitable” standard of § 11 (e) in determining the amounts to be paid the preferred stockholders in satisfaction of their claims. As will appear, the ultimate effect of the Commission’s determination was to allow the holders of the three series of Engineers’ outstanding cumulative preferred stock to receive the call (or voluntary liquidation and redemption) prices for their shares, namely, $105 per share, $110 per share and $110 per share, rather than the involuntary liquidation preference which, for each of the three series, was $100 per share. Common shareholders oppose the allowance to the preferred of the call price value, insisting that the maximum to which the preferred are entitled is the involuntary liquidation preference of $100. In this view the District Court and, generally speaking, the Court of Appeals have concurred, declining to give effect to the plan as approved in this respect by the Commission. Consequently we are confronted not only with issues concerning the propriety of the Commission’s action in applying the “fair and equitable” standard of § 11 (e), but with the further question whether its judgment in these matters is to be given effect or that of the District Court, either as exercised by it or as modified in certain respects by the Court of Appeals. The facts and the subsidiary issues involved in the various determinations are of some complexity and must be set forth in considerable detail for their appropriate understanding and disposition. At the time the Public Utility Holding Company Act was enacted, the holding company system dominated by Engineers consisted of 17 utility and nonutility companies. Of these, nine were direct subsidiaries of Engineers and eight were indirect subsidiaries. Integration proceedings under § 11 (b) (1) of the Act were instituted with respect to Engineers and its subsidiaries in 1940. In a series of orders issued in 1941 and 1942 the Securities and Exchange Commission directed Engineers to dispose of its interests in all companies except either Virginia Electric and Power Company or Gulf States Utilities Company, and designated Virginia as the principal system if Engineers failed to elect between it and Gulf States. At the time the plan now under review was filed Engineers had complied with the divestment orders to the extent of disposing of all its properties except its interest in Virginia, consisting of 99.8 per cent of that company’s common stock, and its interest in Gulf States and El Paso Electric Company, consisting of all their common stock. Engineers’ principal assets were the securities representing its interest in these companies and $14,650,000 in cash and United States Treasury securities. Engineers had no debts. It had outstanding three series of cumulative preferred stock of equal rank: 143,951 shares of $5 annual dividend series, 183,406 shares of $5.50 series, and 65,098 shares of $6 series. As has been said, all three series had involuntary liquidation preferences of $100 per share, call prices of $105 for the $5 series and $110 for the $5.50 and $6 series, and voluntary liquidation preferences equal to the call prices. Proceedings before the Commission. The Plan as Originally Filed. The plan as originally filed by Engineers provided for the retirement of all three series of preferred stock by payment of the involuntary liquidation preference of $100 per share, plus accrued dividends to the date of payment. The remaining properties of Engineers were then to be distributed among the common stockholders, and Engineers was to dissolve. In order to insure adequate presentation of the views of the preferred stockholders, Engineers’ board of directors authorized one of its members, Thomas W. Streeter, who was primarily interested in the preferred stock, to retain counsel partly at the company’s expense. Streeter and members of his family are petitioners in No. 227. These preferred stockholders and representatives of a group of institutional investors who held preferred stock, the Home Insurance Company and Tradesmens National Bank and Trust Company, petitioners in No. 243, appeared before the Commission in opposition to the plan. They contended that they should receive amounts equal to the voluntary liquidation preference of the preferred. After summarizing the issuing prices, the dividend history, and the market history of the three series of preferreds, the Commission analyzed the assets coverage and earnings coverage of the stock. The preferred stock of Engineers represented 17.5 per cent of the consolidated capitalization and surplus of the system. That stock was junior to the 66.2 per cent of the consolidated capitalization and surplus which consisted of securities of Engineers’ subsidiaries held by the public, and senior to 16.3 per cent, consisting of Engineers’ total common stock and surplus. The system’s average earnings coverage of fixed charges and preferred dividends for the last five years prior to the submission of the plan was 1.4 times. For these five years Engineers’ average earnings coverage of preferred dividends was 1.5 times. Certain expert testimony concerning the going-concern or investment value of the preferred stock was adduced before the Commission. Dr. Ralph E. Badger was an expert witness on behalf of certain preferred stockholders. He made a detailed analysis of the earnings and assets of Engineers and of the three series of preferred stock. He then compared Engineers and the preferred stock with relevant information concerning other comparable companies and securities. He concluded that, apart from their call provisions and on the basis of quality and yield, the three series of preferred stock should be valued at $108.70, $119.57, and $130.33 respectively, but that because of the redemption privilege, “the present investment values are represented by their call price, plus a slight premium to account for the time required to effect a call.” The fair investment values of the preferred, in view of the redemption privilege, were: $5 series— $106.25; $5.50 series — $111.38; $6 series — $111.50. No rebuttal testimony was introduced, and there was no serious challenge to Badger’s conclusions that the fair investment value of each series of the preferred exceeded the call prices. Donald C. Barnes, Engineers’ president, testified that apart from the impact of § 11 of the Act and taking into account the call prices, the fair value of the preferreds, i. e., “what a willing buyer would pay and what a willing seller would take in today’s market for such securities,” was somewhat above the redemption prices. Barnes spoke of several factors, viz., possibilities of continued inflation, of depression, government competition, adverse changes in regulatory policy, or developments in atomic energy, all “common to the utility industry generally,” which might have a future adverse effect on the value of Engineers preferred. Both witnesses agreed, however, as Engineers stated in its brief before the Commission, that “the present value or investment worth of these three series of stock, on a going concern basis and apart from the Act, under prevailing yields applied to comparable securities” was in excess of the call prices. Barnes also testified that the preferred stock would have been called if it had not been for the impact of § 11. The Commission first held that “the dissolution of Engineers [was] 'necessary’ under the standards of the Act.” However, since such a liquidation, under Otis & Co. v. Securities and Exchange Commission, 323 U. S. 624, “does not mature preferred stockholders’ claims,” the so-called involuntary liquidation provision of Engineers’ charter was not operative. The Otis case ruled “that Congress did not intend that its exercise of power to simplify should mature rights, created without regard to the possibility of simplification of system structure, which otherwise would only arise by voluntary action of stockholders or, involuntarily, through action of creditors.” 323 U. S. at 638. After announcing that in a § 11 reorganization “a security holder must receive, in the order of his priority, from that which is available for the satisfaction of his claim, the equitable equivalent of the rights surrendered,” the Commission considered all the charter provisions which affected the preferred, “such as the dividend rate and the call price as well as the liquidation preferences,” and analyzed the financial condition of the company “with particular regard to the asset and earnings coverage of the preferred.” On the basis of the undisputed testimony the Commission found that the going-concern or investment value of the preferred was at least equal to the respective call prices. Since the call prices operated as ceilings on the value of the security by providing with respect to each series, “a means, apart from the Act, whereby the security can be retired at a maximum price,” no attempt was made to determine whether the investment value of any series of preferred would exceed the call price if there were no call provision. The Commission concluded that the payment of only $100 per share, plus accrued dividends, would not be fair and equitable to the preferred stockholders. It therefore refused to approve that provision of the plan which provided for retirement of the preferred at involuntary liquidation preferences. Turning its attention to whether the plan was fair to the common stock, the Commission stated that, because of the accumulation of large amounts of idle cash, elimination of preferred stock having fixed dividend requirements was “highly beneficial to the common.” Moreover, by implementing adjustment of the system to compliance with the Act, retirement of the preferred brought the common closer to the time when it would begin receiving dividends. Engineers contended that payment to the preferred of any amount in excess of $100 per share was unfair, because certain divestments required by the Act resulted in losses to the common stock and also eliminated the advantages of a “diversified portfolio of securities.” In reply to this the Commission noted that it did not accept the hypothesis that losses were incurred by divestments caused by the Act, and stated that the preferred claims, measured by their going-concern value, were entitled to absolute priority, and that what remained to junior security holders after satisfying this priority was necessarily their fair share. Certain mechanical features of the plan were also disapproved by the Commission. The Amended Plan. Engineers then acquiesced in the Commission’s determination and submitted an amended plan. In addition to meeting the Commission’s mechanical objections to the original plan, the amended plan provided for payment of the preferred stocks at their voluntary liquidation or call prices. Over the objections of certain common stockholders, the Commission approved the plan as amended. It stated that, in the event the common stockholders continued to litigate the fairness of the plan after approval by the district court, it would be appropriate “to achieve expeditious compliance with the Act and fairness to the persons affected ... for Engineers to make prompt payment of $100 per share and accrued dividends in order to stop the accrual of further dividends, and set up an escrow arrangement.” The escrow would secure the payment of the amount in issue and also “an additional amount to provide the preferred 'for the period of the escrow a return on the amount in escrow which is measured by the return which would have been received by it if the stock remained outstanding.’ ” Such an escrow could be established under court supervision without returning the plan to the Commission. Holding Company Act Release No. 7119, p. 6. By later order the Commission provided for the establishment of such an escrow at the option of Engineers if it appeared likely that common stockholders would litigate beyond the district court. Holding Company Act Release No. 7190. Proceedings in the District Court. The Commission applied to the District Court for the District of Delaware for approval of the plan as amended. § 11 (e). Certain common stockholders, respondents in Nos. 226, 227, and 243, and petitioners in No. 266, filed objections to the plan, contending that the Commission had erred in awarding to the preferred stockholders the equivalent of the voluntary liquidation preferences of their shares. The Streeter group of preferred stockholders objected to the Commission’s finding of the appropriateness of an escrow arrangement to stop the accrual of further dividends in the event of continued litigation. The District Court considered the case on the record made before the Commission. It preferred not to determine whether the involuntary liquidation preferences controlled, but stated that “in each case the inquiry is one of relative rights based on colloquial equity.” 71 F. Supp. 797, 802. That standard, thought the court, necessitated consideration of various factors to which it was thought the Commission had attached little or no importance. Thus it was important to consider not only the charter provisions but the issuing price in terms of what the company received for the securities, and the market history of the preferred. These factors might more than offset the factor of investment value, the testimony as to which the court accepted. In any event, thought the court, several other considerations have this effect. The Act, in addition to compelling the preferred stockholders to surrender “this present enhanced value,” worked hardships on the common. All classes of securities, the court said, suffered losses as a result of the divestment orders issued by the Commission under the Act. Earnings retained in the system at a sacrifice to the common contributed to the enhancement of the value of the preferred. These standards of “colloquial equity,” which the District Court conceived to be controlling in our decision in Otis & Co. v. Securities and Exchange Commission, supra, compelled the conclusion that it would not be fair and equitable to give the preferred more than $100 per share. Arguments concerning the worth of the preferred in the absence of a Public Utility Holding Company Act were thought not profitable to consider “for there is a Public Utility Holding Company Act.” In effect amending the plan to provide for payment of the preferred at $100 per share, the District Court approved the plan as thus amended. The escrow agreement prescribed by the Commission was approved, the court concluding that there was no merit in the preferred stockholders’ objections to this feature. 71 F. Supp. 797. Proceedings in the Court of Appeals. The Court of Appeals for the Third Circuit regarded as a central issue in the case the question whether the District Court had exceeded the scope of review properly exercised by a district court reviewing a plan under § 11 (e) of the Public Utility Holding Company Act. It concluded that the District Court was charged with the duty of exercising a full and independent judgment as to the fairness and equity of a plan, “to function as an equity reorganization tribunal within the limitations prescribed by the Act.” 168 F. 2d 722, 736. Turning to the various factors which should have been taken into consideration in arriving at the equitable equivalent to the rights surrendered by the preferred shareholders, the Court of Appeals criticized the Commission for finding the investment value of the preferred as if there were no Holding Company Act while omitting to evaluate the common by the same standard, and for failing to consider factors other than the investment value. It was thought that the Commission should have estimated the future earning power of Engineers, absent a Holding Company Act, and apportioned that power between preferred and common stockholders in accordance with their respective claims. It was also thought that, in the process of valuing the preferred and the common by the same approach, the Commission should have considered “the substantial losses which occurred to Engineers by virtue of divestitures compelled by the Act.” Losses of this nature “should be returned to the credit side of the enterprise’s balance sheet as a matter of bookkeeping.” Id. at 737-738. But even an investment value figure properly arrived at is “only one of a series of factors to be used in arriving at equitable equivalents.” The Commission was required to consider “All pertinent factors and all substantial equities,” which presumably included the “colloquial equities” adverted to by the District Court. Id. at 738. The District Court, however, was held to have erred in one particular: it had amended the plan by substituting its own valuation of $100 per share for the preferred stock for that of the Commission. The court had no power to do this. It could only reject the Commission’s valuation, and return the case to the Commission for further action in the light of the court’s views. At the time the opinion of the Court of Appeals was rendered, the plan had been consummated, with the exception of the payment of the disputed amounts in excess of the involuntary liquidation preferences of the preferred. The escrow arrangement, which had been employed to preserve the issue of the amount to which the preferred was entitled after having been approved by the Commission and the District Court, was held to be proper. We granted certiorari because of the importance of the questions presented in the administration of the Public Utility Holding Company Act. 335 U. S. 851. I. The Court of Appeals was of the view that the question of the extent of “the power conferred on the district courts ... by the Act” was one which went “to the heart of the instant controversy.” 168 F. 2d at 729. The Commission apparently took the position before that court that the District Court had erred in setting aside the agency’s conclusions unless those conclusions lacked “any rational and statutory foundation.” This view was rejected by the Court of Appeals. Distinguishing judicial review under § 24 (a) as being limited to the inquiry whether the Commission “has plainly abused its discretion in these matters,” Securities and Exchange Commission v. Chenery Corp., 332 U. S. 194, 208, the Court of Appeals held that a § 11 (e) court was charged with the duty of exercising a full and independent judgment as to the fairness and equity of a plan, “to function as an equity reorganization tribunal within the limitations prescribed by the Act.” 168 F. 2d at 736. This position is maintained before this Court by the representatives of the common stockholders. The preferred stockholders’ representatives urge that the Court of Appeals erred in this regard, and that the conclusion of the Commission should not have been disturbed by the District Court, because that conclusion was supported by substantial evidence and was within the agency’s statutory authority. The District Court, in their view, exceeded the proper scope of review. The Commission apparently no longer takes so restrictive a view of the District Court’s function as it formerly held. It now concedes that that court had power to review “independently” the method of valuation employed. But it urges that in this case the question, whether a proper method of valuation was employed, is one of law, since Congress has itself prescribed the standard for compensating the various classes of security holders instead of delegating to the Commission the task of fixing that standard. In the alternative the Commission argues that “If, as the court below seemed to assume, the question is not one of law, . . . the scope of review under Section 11 (e) is limited in the same manner as that applicable to determinations of the Interstate Commerce Commission under Section 77 of the Bankruptcy Act,” which is said to embody a similar statutory scheme and under which administrative determinations of valuation are sustained if supported by substantial evidence and not contrary to law. Ecker v. Western Pacific R. Corp., 318 U. S. 448, 473; R. F. C. v. Denver & Rio Grande W. R. Co., 328 U. S. 495, 505-509. The problem of the scope of review which Congress intended the district court to exercise under § 11 (e) arises from and is complicated by the fact that Congress provided not one, but two procedures for reviewing Commission orders of the type now in question. The first is afforded by § 11 (e) itself. It relates to orders approving voluntary plans submitted by any registered holding company or subsidiary for compliance with subsection (b). The Commission is authorized to approve such a plan if, after notice and opportunity for hearing, it “shall find such plan, as submitted or as modified, necessary to effectuate the provisions of subsection (b) and fair and equitable to the persons affected by such plan.” Then follows the provision that “the Commission, at the request of the company, may apply to a court ... to enforce and carry out the terms and provisions of such plan. If . . . the court, after notice and opportunity for hearing, shall approve such plan as fair and equitable and as appropriate to effectuate the provisions of section 11,” the court is authorized “as a court of equity” to take exclusive jurisdiction and possession of the company or companies and their assets, and to appoint a trustee, which may be the Commission, for purposes of carrying out the plan. The alternative mode of review is provided by § 24 (a). It applies to all orders issued by the Commission under the Act and in abbreviated form is as follows: “Any person or party aggrieved by an order issued by the Commission . . . may obtain a review of such order in the circuit court of appeals ... by filing in such court, within sixty days ... a written petition .... [T]he Commission shall certify and file in the court a transcript of the record upon which the order complained of was entered. . . . [S]uch court shall have exclusive jurisdiction to affirm, modify, or set aside such order, in whole or in part. No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission or unless there were reasonable grounds for failure so to do. The findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” The District Court and the Court of Appeals, focusing their attention primarily on § 11 (e), emphasized the section’s requirement of approval by the District Court, that court’s declared status “as a court of equity,” and the absence from § 11 (e) of such explicit provisions as those of § 24 (a) making the Commission’s findings of fact conclusive, if supported by substantial evidence; limiting the court to consideration of objections urged before the Commission in the absence of reasonable grounds for failure to urge them; and restricting the court’s consideration to the record made before the Commission in the absence of any showing requiring remand to the Commission for the taking of additional evidence. Chiefly from these factors the two courts reached their respective conclusions that the District Court was required to exercise a full and independent judgment as to the fairness and equity of the plan, functioning as an equity reorganization tribunal within the limitations prescribed by the Act. However, they differed, as has been noted, concerning the scope of those limitations. The District Court thought it was authorized to substitute its own judgment for that of the Commission as to whether the plan was “fair and equitable,” after considering independently the various matters it denominated as “colloquial equities.” Accordingly, after reaching numerous conclusions on those matters contrary to the Commission’s or not given final effect in its determinations, the court arrived at an over-all judgment opposite to that of the Commission and held the plan not “fair and equitable” to the common stockholders in awarding the preferred more than $100 per share. Modifying the plan to allow the latter only that amount, the court ordered it enforced as modified. The Court of Appeals was in general agreement with the District Court concerning its power to exercise a full and independent judgment in giving or withholding approval of the plan as “fair and equitable” and, on the whole, was in accord with the District Court’s dispositions of the matters of “colloquial equity.” Stressing statements appearing in the legislative history of § 11, the court thought they gave basis for a strong analogy between the functions of district courts under § 11 (e) and those of such courts “when called upon under the Sherman and Hepburn Acts to effect compulsory corporate readjustments required by the public policy expressed in those acts.” The court’s opinion then added: “We think that it will not be contended that a district court . . . adjudging a controversy arising under the Sherman Act would function other than as in an original equity proceeding, exercising all the powers and duties inherent in a court of equity under such circumstances.” 168 F. 2d at 729. Accordingly, the court upheld the District Court’s view that it had power, as a court of equity, to withhold approval and enforcement of the plan upon its own independent judgment of the “colloquial equities,” notwithstanding the Commission’s contrary judgment and, apparently, even though the Commission’s judgment involved no clear error of law or abuse of discretion. The Court of Appeals, however, viewed somewhat differently the limitations placed by the Act upon the power of review. “The proceedings before the equity reorganization court are not strictly de novo since the district court can only approve a plan when it has been approved by the Commission. See Application of Securities and Exchange Commission, D. C. Del., 50 F. Supp. 965, 966.” 168 F. 2d at 732. The District Court, it was said, could receive evidence aliunde the Commission’s record, could decide on that evidence and the Commission’s record that the plan is unfair and inequitable, and remand the cause to the Commission for further consideration, or could remand without taking new evidence. The District Court therefore was wrong in ordering enforcement of the plan as modified by itself. It could only approve and enforce or refuse approval and remand. Only a plan approved by the Commission and by the court could be enforced. These views were thought supported by the history of the law of reorganization, including equity receiverships, reorganization of insolvent companies under former § 77 B of the Bankruptcy Act, 11 U. S. C. § 207 et seq., and Chapter X reorganizations (id. at § 501 et seq.), although the court did not “mean to imply that Congress intended to grant a Section 11 (e) court the same full and untrammeled scope that a court of bankruptcy would have in a Chapter X proceeding.” 168 F. 2d at 735-736. Nevertheless, “Any question which goes to the issue of what is fair and equitable may be raised and must be passed upon.” Id. at 735. Moreover, since “the critical phrase employed alike by courts of equity and by Congress in framing the test under which a plan shall be approved or disapproved, has always embraced the phrase ‘fair and equitable’ or its substantial equivalent,” the court thought that the power and functions of the district courts in review of plans submitted did not “vary much from statute to statute and from case to case,” id. at 734, i. e., whether the plan was to be consummated by way of equity receivership, by action under former § 77 B, by suit under Chapter X, by a proceeding under § 77, 11 U. S. C. § 205, or by petition to a district court under § 11(e). The variant views held respectively by the Commission, the District Court, the Court of Appeals, and the parties to the proceeding demonstrate the complexity of the problem. Each view has a rational basis of support, but none is without its difficulties, either in statutory terms, history and intent or in practical consequences. The legislative history of § 11 (e) throws little light on the problem. There was, surprisingly, only casual, indeed tangental, discussion of it. The analogy to proceedings under § 77 of the Bankruptcy Act, drawn by the Commission and referred to by the Court of Appeals, rests chiefly upon the statement of Senator Wheeler, co-sponsor of the bill, made during a colloquy in debate on the Senate floor and set forth in the margin. But that statement did not occur in any detailed consideration of the scope and incidence of judicial review. It arose only as it were incidentally in the course of extended discussion which centered about the receivership provisions of § 11 (e) as it stood at the time of the debate. Moreover, the discussion did not and could not take account of the fact that, under our subsequent decisions in the Western Pacific and Denver & Rio Grande cases, supra, matters of valuation in § 77 reorganizations have been held to be exclusively for the Interstate Commerce Commission, not for the district courts, except as stated above. Ecker v. Western Pacific R. Corp., supra; R. F. C. v. Denver & Rio Grande W. R. Co., supra. Significantly, this fact seems not to have been taken into account when the Court of Appeals included the § 77 proceedings among its general grouping of reorganization procedures for analogical purposes. And in this respect the Commission makes clear its difference from the Court of Appeals, pointing out that under the Western Pacific and Bio Grande decisions the Commission decides questions of valuation, subject only to the narrow scope of review there allowed. But, as if to complicate the matter further, the Commission’s analogy is somewhat weakened by the fact that the Western Pacific and Bio Grande rulings concerning review of valuation matters rested upon language in § 77 not repeated in § 11 (e) of the Act presently in question. That language, appearing in subsection (e) of § 77, provided: “If it shall be necessary to determine the value of any property for any purpose under this section, the Commission shall determine such value and certify the same to the court in its report on the plan.” This, the Court held, left to the Interstate Commerce Commission the determination of value “without the necessity of a reexamination by the court, when that determination is reached with material evidence to support the conclusion and in accordance with legal standards.” 318 U. S. at 472-473. On the other hand, the opposing analogy drawn by the Court of Appeals from the history of the law of reorganization in general is highly indiscriminate. Insofar as it includes equity receiverships, e. g., pursuant to Sherman and Hepburn Act readjustments, it ignores the important fact that in such proceedings there is no effort to brigade the administrative and judicial processes. Nor does it take account of the substantial differences “from statute to statute,” e. g., between proceedings under § 77 of the Bankruptcy Act as construed in the Western Pacific and Bio Grande cases, on the one hand, and Chapter X reorganizations, on the other. Moreover, and perhaps most important, it substitutes analogy drawn from other statutes and judicial proceedings, together with a reading of § 11 (e) in comparative isolation from the other provisions of the Act, for a consideration of that section in the context of the Act, as a whole and particularly with reference to any effort toward harmonizing the section with § 24 (a) and bringing the two as close together as possible in practical operation. Of course Congress could provide two entirely dissimilar procedures for review, depending on whether appeal were taken by an aggrieved person to a Court of Appeals or the plan were submitted by the Commission at the Company’s request to a district court. But it is hard to imagine any good reason that would move Congress to do this deliberately. The practical effect of assuming that Congress intended the review under § 11 (e) to be conducted wholly without reference to or consideration of the limitations expressly provided for the review under § 24 (a) certainly would produce incongruous results which would be very difficult to impute to Congress in the absence of unmistakably explicit command. For one thing the consequence would be, in effect, to create to a very large possible extent differing standards for administration and application of the act, depending upon which mode of review were invoked. In the one instance, apart from reviewable legal questions, the Commission’s expert judgment on the very technical and complicated matters to deal with which the Commission was established, would be controlling. In the other instance, it would have to give way to the contrary view of whatever district court the plan might be submitted to. Conceivably the same plan might be brought under review by both routes. Indeed, in one instance the District Court for Delaware, to which the plan here was submitted, held that its determination of the issues in a § 11 (e) proceeding was precluded by a prior affirmation of the same order by a Court of Appeals in a § 24 (a) review proceeding. See L. J. Marquis & Co. v. Securities & Exchange Commission, 134 F. 2d 822, and Application of Securities and Exchange Commission, 50 F. Supp. 965. Presumably, under the views now taken by the District Court and the Court of Appeals, if district court review under § 11 (e) could be had first, that determination likewise would be conclusive as against contrary views held by the Commission and a Court of Appeals in a later § 24 (a) proceeding. Moreover, apart from legal questions, the controlling standard would be fixed by the discretion of the district court to which the plan might be submitted. And since such a court might be any of the many district courts available for that purpose, there hardly could be the uniform application of the “fair and equitable” standard which Congress undoubtedly had in mind when it entrusted its primary administration to the Commission’s expert judgment and experience, and when it drafted the detailed provisions of § 24 (a) for review. To the extent at least that the standard contemplated an area of expert discretion, its content under the view taken by the District Court and the Court of Appeals could not be uniform, but would vary from court to court as the judicial discretion might differ from that of the Commission or other courts. In contrast with the specific limitations of § 24 ( Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". SOTTONG et al. v. MAGNOLIA PETROLEUM CO. No. 3467. Circuit Court of Appeals, Tenth Circuit July 7, 1947. Rehearing Denied Aug. 6, 1947. Ram Morrison, of Oklahoma City, Old., for appellants. W. R. Wallace, of Oklahoma City, Old. (Wallace Hawkins, of Dallas, Tex., on the brief), for appellee. Before PHILLIPS, BRATTON and IIUXMAN, Circuit Judges. HUXMAN, Circuit Judge. This is an appeal by the plaintiffs, herein called the appellants, from a judgment for the defendant below, Magnolia Petroleum Company, in an action for the cancellation of an oil and gas lease on a tract of land in Garvin County, Oklahoma. The decision turns upon whether the transaction in question constituted an offer to lease the premises and was withdrawn before acceptance, or whether it constituted an agreement which obligated the oil company to pay the consideration subject only to the examination of the title to determine its merchantability. The trial court found that Mrs. Sottong offered to sell the lease for a bonus of $50 per acre and that Magnolia, through its representative, Lanier, accepted the offer. The court further found that Mrs. Sottong told Lanier that it would be satisfactory with her for him to take the lease with him and send her the money as soon as he could check the title. Based on these findings, the court concluded as a matter of law that the lease had been executed and delivered to Magnolia with the understanding that it had the right to check the title before paying the consideration, and that it was bound to pay the consideration if the title was good. The only question before us is whether these findings are supported by substantial evidence. . Most of the facts are not in dispute. Mrs. Sottong was'the owner of the land in question. On December 2, 1936, she and her husband executed a ten-year oil and gas lease to F. M. Roland, which lease was assigned to Magnolia Petroleum Company, the defendant herein. This lease expired by its own terms December 2, 1946, unless the drilling of an oil and gas well was commenced prior thereto. In July, 1945, Mrs. Sottong wrote a letter to Magnolia, stating that she had received offers for a “top lease” on the tract of land in question and inquiring whether Magnolia would be interested in such a lease. On August 3, 1946, Magnolia replied, stating that since its lease had approximately 16 months to run, it would prefer to wait until a later date to consider a top lease, but that it would be glad to consider afty offer she might make. On January 29, 1946, Mrs. Sottong wrote Lanier, an agent for Magnolia, stating that she had been approached by F. A. Appling, who had made an offer for a top lease, and inquired if he represented Magnolia. She also stated that she had been approached by Fred Roland, who stated that he was representing Magnolia. After receiving this letter, on January 31, 1946, Lanier went to Tulsa and called on the Sottongs. Fie informed them that neither Appling nor Roland represented Magnolia. Mrs. Sottong stated that they had offered her $50 per acre for a top lease but that she preferred to lease to Magnolia. Lanier advised her that he did no.t have authority to pay $50 per acre, but would undertake to get authority from Magnolia and would call her the next morning. He left with the understanding that he would ascertain whether Magnolia would pay $50 per acre. The next morning he contacted the Dallas office and obtained authority to pay her $50 an acre for the new lease. On the morning of February 1, Mrs. Sottong called Lanier’s hotel and requested that he call her at a designated phone number. When he called her, she stated that she had talked to her sister, who thought that it was a good deal, and decided that she would not work that day but would stay home and close up the deal. After finishing his lunch that day, Lanier went to a public stenographer, had the lease prepared, and, accompanied by the stenographer, who was a notary, went to the Sottong residence, where he met her and her husband to execute the lease. He also prepared and took with him an escrow letter to the bank and later prepared a draft drawn on Magnolia for $8500, and took it out to her for her signature. When he presented the lease for signature, he told her that he did not know how she would want to handle it, whether she would want to send it to the bank for collection or take it to her bank, or that he would take the lease with him if that is what she wanted. Lanier testified that when he took the draft back for her signature, he told her that it would be necessary for her to sign the draft if she wanted to send it to the bank, and that she replied that she did not care, that he could handle it as he pleased, that he could take the lease with him or mail it to the bank. Lanier testified that he offered her $50 an acre and that she agreed to take it. On cross examination, Lanier testified that the only condition to the payment of the $8500 was satisfactory title. He testified further that he had agreed to pay her $8500; that when he left he considered that Magnolia owed her that sum if the title was good. Lanier testified that it was agreed that he would take the lease directly to Magnolia, and that Magnolia would pay her $8500 within ten days if the title was found merchantable, and that otherwise it would return the lease. Magnolia approved the title and within the ten-day period tendered the $8500 to Mrs. Sottong. However, on February 4, 1946, within the ten-day period, Mrs. Sottong notified the bank that she had withdrawn her offer to lease, and directed it to return the lease. On the same day she also sent a wire to Magnolia, in which she stated, “We retract our offer to lease to you our farm in * * She confirmed this wire by letter. Magnolia, however, retained and recorded the lease. A number of legal propositions are advanced by the parties in support of their respective contentions, which in our opinion are not necessary to be considered or decided, because the entire case turns upon the question whether the transaction constituted an offer to lease which was withdrawn before acceptance, or whether it constituted a binding agreement which obligated Magnolia to pay $8500 within ten days if the title was merchantable. Of course the law is well settled that as to contracts generally there can be a conditional delivery, and that the failure of the condition prevents the contract from taking effect. So, also, it may be conceded that whether there has been absolute or conditional delivery of a written contract may be shown by parol evidence. We deem it unnecessary to cite authorities in support of these well established principles. These were questions of fact upon which the decision depended in the court below. The trial court resolved them against appellants’ contentions. It found that Mrs. Sot-tong’s offer to take $50 per acre for the lease was accepted by Magnolia, subject only to approval i.f title; that a written lease was prepared and delivered to Magnolia; and that Magnolia tendered payment within the ten-day period. We have not set out Mrs. Sottong’s evidence in detail, because our function is limited to a scrutiny of the evidence which is urged in support of the court’s findings. Concerning her testimony it is sufficient to say that, considered in its entirety, it does not materially contradict the testimony of Lanier. Thus, she admitted telling Lanier that in her estimation this was more money than she thought she would ever get, and that she was delighted to get that amount of money; her son, John, testified that his mother said that, that was more money than she ever expected to see, and that she “was awfully glad about it.” Thus her own evidence supports tile conclusion that she was of the opinion that as a result of the negotiations she would receive $8500 from Magnolia. This implies more than a mere continuing offer on her part which was subject to acceptance or rejection. Finally, appellants contend that Lanier’s authority to buy the lease as the agent of Magnolia was required to be in writing to take the contract out of the statute of frauds. Woodworth v. Franklin, 85 Okl. 27, 204 P. 452, 27 A.L.R. 590, by the Oklahoma Supreme Court, is cited in support of this proposition. That case does not support appellants’ position. There the agent of the owner of the land executed the oil and gas lease and the court correctly held that his authority to execute an oil and gas lease must be in writing. It was not necessary for Lanier’s authority to offer to buy the lease to be in writing. When his offer was accepted and a valid written lease was executed and delivered, an enforceable contract resulted. The findings of the trial court are supported by substantial evidence and the judgment is therefore affirmed. While the date of this letter in the record is given as August 3, 1946, this apparently is an error, and no doubt August 3, 1945, was meant. This clearly appears from the fact that the new lease was executed on January 30, 1946. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_r_subst	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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 "sub-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. The HISPANIC SOCIETY OF the NEW YORK CITY POLICE DEPARTMENT INC., Luis A. Salgado, William Morales, Manuel Torres, Valentin Neves, Jr., Individually and on behalf of all those similarly situated, the Guardians Association of the Police Department of the City of New York Inc., Gregory S. Williams, Robert McNair, Timothy Pearson, Individually and on behalf of all those similarly situated, Plaintiffs-Appellees, v. The NEW YORK CITY POLICE DEPARTMENT, Department of Personnel of the City of New York and the City of New York, Defendants-Appellees, Robert Hyman, Dennis Gallagher, Thomas Biscione, Timothy McCarthy, David Kondrup, Thomas Cody, Anthony Tesu, James Latuda, Richard Milla, Emerald Society of the Police Dept. of the City of New York Inc., Columbia Association of the Police Dept. of the City of New York Inc., Shomrim Society of the New York City Police Department Inc., St. Paul Society of the New York City Police Department Inc., Steuben Association of the Police Dept. of the City of New York Inc., Francis Shields, Michael Ward, Helene Rinaldi, Ferdinand Guerra and Peter Mahon, as President of Sergeants Benevolent Association and Sergeants Benevolent Association, Defendants-Intervenors-Appellees, v. Wayne COSTELLO, John Lanigan, Barbara Pichler, Christopher Matejov, Alan Fisher, Ron Mazone, Thomas Collins, Thomas McManus, William Lucas, Mary Donnelly, Gennaro J. Aiello, Anthony M. Lombardo, John Galvin, Phillip McNer-ney, James Muranelli, Richard Wojno, Guliano Schiozzi, Thomas E. Quinn, Dennis Casavillo, Charles Hart, David Veraja, John Houston, Patrick Castoro, James Collins, Lawrence Praino, Michael Siedel, Richard Frick, James Healy, Frank Gaetani, James Lien, Mark Eisenberg, William Moen, Wilson Padilla, Evelyn Marino, Arthur J. Rotella, Thomas Ruskin, John Russo, Patrick Russo, Barney Ryan, Thomas J. Ryan, Michael Ryder, Warren Sam, John Sassano, Mel Schwartz, Herbert Seigal, James Smith, Ann Sowinski, William Spisak, Stanley Tatar, Dennis Terminello, Jill Tomczak, Charles Tora-no, Catherine Volpe, Walter P. Voss, Robert Wagner, William J. Zazeckie, Thomas Moss, Theodore McHugh, Joseph Nicolo-si, Kenneth Otten, Louis Pioli, Tadgh D. McNamee, Terrance McCabe, David Pan-etta, Christopher Haggerty, James G. Schneider, Thomas P. Kelly, Florence Ci-affone, Kevin Sweeney, Howard Allen, Gary Berman, Steven Cairo, Joseph Concannon, Michael Conolly, Maurice Devito, Arthur Flynn, Raymond Gallagher, Kevin Grassing, James C. Kelly, Kevin Kubick, Robert B. Langer, Henry Mahncke, John Marcone, John Mazzoc-chi, Patrick McGinnis, Sergio Mikulus, Kenneth Nilsen, Alan R. Ostoits, Henry Palayo, Anthony Reitano, Robert A. Sow-inski, Joseph Torragrosa, Richard Severi, Rubin Rivera, Alan May, Marc Wolf, William Saunier, Anthony P. Contento, Dominick Petrucelli, Frederick Termini, Kevin Ryan, Morton Adler, Richard J. Ang-ley, Robert Als, Albert Ascolese, Pompeo J. Basile, Lawrence G. Blumenthal, Kevin Boshell, Keith Brinkmann, Daniel Buckley, John J. Carney, Joseph Casella, Harvey Charym, Robert Chille, Gerald Chirico, John Connolly, Frank Corselli, Gary Davis, Edmond J. Decio, Alexander A. DeFrancis, Nicholas Dimuro, James Do-nohue, William Erdogan, Nathan Fishman, Philip Franchina, Calire Gallagher, Carl Gandolfo, John P. Gerrish, Daniel Graser, Ronald V. Greco, Geoffrey Hart, John Holze, Richard Hoover, Robert Iovi-no, John Johnson, Craig Judge, Kevin Kaufman, Kieran Kelly, Daniel Kelly, Timothy Kelly, Patrick J. Kenny, Kevin Kirby, Fran Kripinski, Francis X. La-velle, Anthony Longhitano, James Luon-go, Dennis McCabe, John J. McCann, Kevin L. McDonald, Thomas McDonald, Stanley Meltzer, Ralph Marchitelli, Evelyn Mooney, George Moran, James Mor-eink, Kevin Mullen, Michael D. Nemoy-ten, Daniel P. O’Neill, Joseph Oppromala, Frank R. Paganucci, Edmund Pederson, Joseph Picarello, Ronald Polis, Gerald Pope, Alan Prescott, Robert Pyetel, Ronald W. Rodman, William Romano, John E. Rivers, George S. Reynolds, Samuel P. Reiver, Eileen Regan, Angelo Graniero, Robert Edwards, Thomas J. Gulotta, Ricky Carpen, Kevin Keenan, David Chong, William Dwyer, Edward Harvey, Benjamin Conforto, Anthony Pauline, Gary M. Katz, George J. Meyer, Barry Goldblatt, Robert Tobuck, James Martin, Frank Mandile, Mary Maruffi, James O’Reilly, Gilbert Eaton, Thomas Kennedy, Ellen Hale, Daniel Boylan, Richard Miltenberg, Kevin O’Keefe, Robin Birn-baum, Frank Forte, Michael Pasuale, Martin Roddini, Anthony Celano, Charles Martin, Salvatore Buscemi, Robert Ahern, Stephen Broady, Chris Athanaso-polos, Billie Rivera, Michael Demarfio, Karen Robino, Raymond Mardiney, John Holub, John Toledo, John Wynne, Michael Fiscina, Robert Spitzer, Kenneth Roberts, Richard E. Lagrua, Victor Galante, Brendan Dolan, Fred Schwartz, Robert Mulligan, Walter O’Keefe, Brian O’Reilly, Kevin Fitzpatrick, James Morris, Richard Baebler, Michael McGarvey, Michael Arcardi, Joseph Averso, Angela Amato, Gennaro Aiello, Frank Bergstol, Joseph Balnck, Joseph Brousseau, Joseph Buffolino, William Buryk, Nicholas Bul-zomi, Ronald Bradley, Douglas Brandt, Christopher Buckley, Ronald Betterly, Edward Brajczewski, Nicholas Battista, Diane Broccoli, Darryl Berger, Domenick Canale, Paul Calandro, Thomas Callahan, Roland Capuano, Robert Clancy, William Casey, Martin Connolly, Louis Curcuru-to, A.P. Casano, James Curry, Francis Cush, Michael Campbell, Daniel Collins, Guy Castellano, William Coyne, James Ciaccia, James Christopher, Jr., Timothy Connolly, Robert Dean, Raymond Du-fresne, Brian Dailey, Douglas Brandt, Norman Donoghue, William Dunphy, John English, Mark Eisenberg, Harvey Feit, Dennis Emperor, John Feeney, Todd Fisher, Andrew Foppiano, Stephen Fajfer, John Fitzgerald, Vincent Giam-musso, Richard Gwillym, Harvey Grape, Vincent Giantasio, Fr. Michael Glasser, John Geary, Joseph Giacoppo, Michael Giacoppi, Henry Gross, John Gurtowski, Karl Garbrielsen, Brien Hogan, Thomas Hatch, Thomas Iacopelli, Geoffry Jahn, David Kaiser, Michael Kelly, Stephen Kurz, Edward Kulesa, Richard Kleiner, George Koehler, Daniel Kornblum, John Kloepping, Arthur Kaplan, William Kinz-ler, Nicholas Limoncelli, Robert Lynch, Christine Legrottaglie, Edith Linn, Anthony Lombardo, James Mood, Thomas Moss, John Melillo, Thomas McGovern, Michael R. McGovern, William McNamara, Edward Paroulek, Arthur Peaslee, Roy Popple, Robert Peters, Robert Peyer, Frank Panareese, Joseph Pastorino, Harold Robinson, Robert Renolds, Connie Phelan, Michael Pasquale, Edward Scola-vino, John Scolaro, Donald Skuza, Edward Solomonik, Ronald Shindel, Andrew Sovia, Edward Smith, Jerry Salzman, Joseph Stabile, William Seyc-hell, Michael Trimis, Robert Tarigo, Robert Toohey, Gari Tibaldi, Louis Vingelli, Bernard Wahlen, Jerry Wojcik, Robert Willmarth, Theodore Wess, John Yuknes, John Murphy, Joseph K. Monahan, Warren Molino, Randall Mayer, Peter Malva-sio, Robert Napolitano, John Nickels, Stephen Epstein, Louis Greco, Appellants. No. 220, Docket 86-7507. United States Court of Appeals, Second Circuit. Argued Oct. 16, 1986. Decided Dec. 8, 1986. Ronald Podolsky, New York City, for appellants. Kenneth Kimberling, New York City (Linda Flores, Puerto Rican Legal Defense & Education Fund, Inc., New York City, of counsel), for plaintiffs-appellees Hispanic Society. Robert David Goodstein, Goodstein and West, New Rochelle, N.Y., of counsel, for plaintiffs-appellees Guardians Ass’n. Frederick A.O. Schwarz, Jr., Corp. Counsel, June A. Witterschein, Elizabeth Dvor-kin, New York City, of counsel, for defendants-appellees. Richard K. Walker, Bishop, Lieberman, Cook, Purcell & Reynolds, Washington, D.C., of counsel, for defendants-inter-venors-appellees. Before FEINBERG, Chief Judge, and WINTER and MAHONEY, Circuit Judges. WINTER, Circuit Judge: This appeal is from an order approving the settlement of a classwide claim of employment discrimination. It was argued at the same time as a companion case, Marino v. Ortiz, 806 F.2d 1144 (2d Cir.1986), which has also been decided this day. The underlying action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 et seq. (1982), challenged a sergeants’ examination administered by defendant-appellee New York City Police Department (“NYCPD”). The plaintiffs alleged that the examination had a disparate impact upon black and Hispanic candidates for promotion to the position of sergeant. The settlement approved by the district court called for the successive promotion of blacks and Hispanics who had taken the examination until the alleged disparate impact was eliminated. The appellants, who challenge the settlement as a violation of the fourteenth amendment, are said to be police officers who did not score high enough to be eligible for promotion but did as well or better than the blacks and Hispanics who have been promoted pursuant to the consent decree. Because the appellants are not parties to this litigation, we dismiss their appeal. BACKGROUND During June 1983 and April 1984, the NYCPD administered Civil Service Examination No. 2548 to 11,899 candidates for promotion to the rank of sergeant. After scoring the exam, the NYCPD set a cut-off point that produced a list of 1,041 police officers eligible for promotion. The racial/ethnic composition of the group taking the exam was 79.0% white, 12.3% black, and 8.7% Hispanic; the breakdown of the eligible list derived from the test scores was 93.47% white, 2.31% black, and 4.23% Hispanic. In late 1984, the Hispanic Society, representing Hispanic police officers, and the Guardians Association, representing black officers, filed separate actions in the Southern District against NYCPD and various city officials, alleging employment discrimination in violation of Title VII and other provisions. The complaints alleged that the examination had a disparate impact on black and Hispanic applicants and was not job related. Three groups were permitted to intervene in both cases as codefendants: the Sergeants Benevolent Association (“SBA”), representing over 500 officers on the eligible list who had obtained provisional appointments as sergeants; the Sergeants Eligibles Association (“SEA”), representing officers who were on the eligible list but had not received provisional appointments; and various white ethnic societies and other individual officers (the “Schneider Intervenors”). On June 14, 1985, the district court certified plaintiffs in Hispanic Society as representatives of a class of all Hispanic candidates who had taken Examination No. 2548, pursuant to Fed.R.Civ.P. 239(a) and (b)(2). After discovery, the parties began several months of settlement negotiations. A proposed settlement agreed to by the plaintiffs, the defendants, SEA, and SBA was submitted to the district court on February 7, 1986. The settlement provided that at least 1,000 police officers on the eligible list would be promoted to sergeant. Black and Hispanic police candidates not on the list were to be added until the racial/ethnic composition of the group of newly promoted sergeants was approximately the same as the racial/ethnic composition of the group of candidates taking the test. Additional black and Hispanic officers would be promoted in rank order on the basis of their raw scores on the technical knowledge portion of the exam. The settlement also proposed consolidation of the Hispanic Society and Guardians Association actions and the certification of three additional classes: (1) the plaintiffs in Guardians Association as representatives of a class of all black candidates who had taken the examination; (2) SBA as the representative of a class of all officers on the eligible list who had been provisionally appointed to the rank of sergeant; and (3) SEA as the representative of all other officers on the eligible list. The settlement was conditionally approved on February 7, 1986, and a hearing was scheduled for April 17, 1986. Notice of the proposed settlement and the hearing date was sent to all plaintiffs and inter-venors, and posted in all precinct stations. The Schneider Intervenors, who had not signed the proposed agreement, were the only parties to the action to oppose the settlement. Objections were also filed by officers who were not on the original eligible list but who claimed to have received scores equal to or higher than the black and Hispanic officers to be promoted pursuant to the settlement. The same counsel who represents the appellants in the instant case was allowed to speak at the hearing and argued that the proposed settlement violated the rights of such officers to equal protection of the laws. He filed a “Request for Modification” on behalf of his clients seeking to have the consent decree modified to provide that they be put on the eligible list and promoted. Judge Carter approved the settlement on June 16, 1986, specifically rejecting the argument made by appellants’ counsel. Hispanic Society of the New York City Police Dep’t v. New York City Police Dep’t, 40 Empl.Prac.Dec. (CCH) ¶ 36,385, at 43,654-55 (S.D.N.Y.1986). The Schneider Intervenors filed notices of appeal. Approximately 350 other officers (a considerably larger group than filed objections), also filed notices of appeal. The Schneider Intervenors withdrew their appeal, however, leaving the appeal of the 350 officers as the only remaining challenge to the settlement of the case. DISCUSSION Appellants, the 350 officers, argue that the settlement agreement violates the fourteenth amendment because it requires the promotion of minorities over nonminorities who achieved the same or better scores on the sergeants’ examination. We cannot consider this argument on the merits, however. Because appellants never moved to intervene in these proceedings, they are not parties to this litigation, and their appeal must be dismissed. As a general rule, only a party of record in a lawsuit has standing to appeal from a judgment of the district court. United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402, 37 S.Ct. 605, 607, 61 L.Ed. 1222 (1917); Martin-Trigona v. Shiff, 702 F.2d 380, 385 (2d Cir.1983); United States v. McFaddin Express, Inc., 310 F.2d 799, 801 (2d Cir.1962). Parties of record include the original parties and those who have become parties by intervention, substitution, or third-party practice. 9 J. Moore, Moore’s Federal Practice ¶ 203.06, at 3-20 (1986). There are exceptions to this general rule, but none is relevant to the present matter. The primary exception is when the nonparty has an interest that is affected by the trial court’s judgment. E. g., Martin-Trigona v. Shiff, 702 F.2d at 385-86 (permitting nonparty trustee to appeal from order granting debtor’s habeas corpus petition against bankruptcy judge.) See also United States v. LTV Corp., 746 F.2d 51, 53-54 & nn.5-6 (D.C.Cir.1984); 9 Moore’s Federal Practice ¶ 203.06, at 3-23. In this case, appellants were not on the original eligible list, they have no right to promotion under state law, and they do not allege that the examination discriminated against them. Even if the settlement were invalidated, therefore, they would not be entitled to promotion. Accordingly, they cannot appeal from the settlement as non-parties with an interest in the order below. Appellants claim to have standing as parties, and to that end point to a “Definition” in the settlement agreement. That definition states: The “New York City defendants” shall mean and refer to the City of New York, the New York City Police Department, the New York City Department of Personnel, and all officers, employees or agents, whether elected or appointed, of the City of New York, but not including the Hispanic Society plaintiffs, the Guardians Association plaintiffs, the in-tervenor-defendants or any individuals or groups represented by the Hispanic Society plaintiffs, the Guardians Association plaintiffs, or intervenor-defendants. Appellants assert that they fall within this definition because they are police officers employed by the City of New York. However, the definitions in the settlement, by their very terms, delineate the parties to the agreement, not the parties to the litigation. For example, the settlement defines “intervenor-defendants” to mean the SBA and the SEA. By appellants’ logic, the Schneider Intervenors would be divested of party status because they are not included in that definition. Yet, the Schneider Inter-venors are intervenor-defendants, and were omitted from the settlement definition because they were not signatories to the settlement. Just as the settlement cannot divest a plaintiff or defendant of party status in the litigation, it cannot confer party status on a nonparty. Further, viewed in context, the definition of “New York City defendants” does not make appellants either parties to the settlement or parties defendant in their individual capacities. This provision of the settlement simply binds them to comply with its terms in their official capacities as employees of the defendants, and does not give them standing to raise their current objections to the settlement as violative of their individual rights. In Bender v. Williamsport Area School District, — U.S. -, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), the Supreme Court rejected on jurisdictional grounds a similar attempt to appeal. In that case, high school students brought an action against a school district, members of the school board, and school administrators, challenging certain restrictions on the use of public school premises under the first amendment. The trial court found in favor of the plaintiffs, but granted no relief against any of the school board members in their individual capacities. When the school district decided not to appeal the adverse decision, board member Youngman decided to prosecute the appeal himself. The Supreme Court, acting sua sponte, held that because the judgment was against Youngman only in his official capacity, he had no standing to appeal in his individual capacity. Id. 106 S.Ct. at 1332 (citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985)). Moreover, Youngman’s status as a board member did not “permit him to ‘step into the shoes of the Board’ and invoke its right to appeal.” Bender, 106 S.Ct. at 1333. The Court also denied Youngman’s claim that he could prosecute the appeal based on his status as a parent, stating, “Since Mr. Youngman was not sued as a parent in the District Court, he had no right to participate in the proceedings in that court in that capacity without first filing an appropriate motion or pleading setting forth the claim or defense that he desired to assert.” Id. at 1335 (footnote omitted). The lack of jurisdiction is even more obvious in the present case because, unlike Youngman, appellants were never parties in the district court in any capacity. They were included only in the settlement agreement, along with all other employees of the City of New York, merely to ensure that they would be bound by its terms in their official capacities. See Bender, 106 S.Ct. at 1332; Brandon, 105 S.Ct. at 877 (“The course of proceedings ... make[s] it abundantly clear that the action against [defendant] was in his official capacity and only in that capacity.”). See also Alexander v. Todman, 361 F.2d 744, 746 (3d Cir.1966) (“A person who sues or is sued in his official capacity is, in contemplation of law, regarded as a person distinct from the same person in his individual capacity and is a stranger to his rights or liabilities as an individual.”). Appellants’ argument that the settlement agreement made them parties defendant in their individual capacities is thus without merit. Appellants also claim that filing written objections to the settlement and appearing at the hearing gave them status as parties to the litigation. The fact that appellants were permitted to object to the settlement in the district court does not make them parties, or enable them to appeal from the approval of the settlement. See United States v. LTV Corp., 746 F.2d at 53; Moten v. Bricklayers, Masons & Plasterers International Union, 543 F.2d 224, 227 (D.C.Cir.1976). Appellants’ predicament results from their steadfast refusal to comply with the requirements for intervention set forth in Fed.R.Civ.P. 24. In dismissing the appeal in Bender, the Supreme Court emphasized the importance of this rule: Because his status as a parent was obviously different from his official status as a member of the Board, in order to participate as a parent in the District Court litigation it was incumbent upon Mr. Youngman under Rule 24 of the Federal Rules of Civil Procedure to make “timely application” by an appropriate motion “statpng] the grounds” for intervention and “setting forth the claim or defense for which intervention is sought.” Fed. Rule Civ.Proc. 24(a), (c). No such pleading was filed in either of the courts below. It is particularly important to observe these requirements in cases in which the interest of the litigant seeking to appeal diverges from the interest of the party to the suit. 106 S.Ct. at 1335 n. 9 (emphasis added). The need for formal intervention is thus as great as the need for named plaintiffs or defendants to state a well-pleaded claim or defense. See Sanders v. John Nuveen & Co., 463 F.2d 1075, 1082 (7th Cir.) (pleading that accompanies intervention motion must satisfy Fed.R.Civ.P. 7(a) so that “all parties understand the position, claims and nature of relief sought by the prospective intervenors”), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972); 3B Moore’s Federal Practice ¶ 24.14. The present appeal, however, is based on factual assertions that are nowhere set forth in sworn pleading. Although approximately 350 appellants are named, the record contains no affidavits or other sworn allegations describing their individual status as police officers or as candidates for sergeant. (We note that a considerably smaller number filed objections to the settlement.) Because the requirements for intervention as a party have been ignored, the people pursuing this appeal have no more standing than individuals selected at random from a telephone book. Cf. Kentucky Home Mutual Life Insurance Co. v. Duling, 190 F.2d 797, 803 (6th Cir.1951) (holding intervention petition insufficient under Rule 24(c) when it did not state cause of action against defendant but merely stated that intervenors had insurance under the group policy in question). Other individual police officers and white ethnic societies, the Schneider Inter-venors, intervened as parties and vigorously pursued their interests. We perceive no reason why appellants could not have done the same. Consequently, appellants lack standing to prosecute this appeal, and we have no jurisdiction. We therefore dismiss the appeal. We deny appellees’ motion for sanctions under Fed.R.App.P. 38. We note, however, that any doubt as to the means by which objectors to class settlements should proceed in the future has been eliminated by this opinion. . The case filed by the Hispanic Society was Hispanic Society v. New York City Police Dep't, No. 84-6628 (S.D.N.Y. filed Sept. 14, 1984), and the action filed by the Guardians Association was Guardians Ass'n. v. New York City Police Dep’t, No. 84-8504 (S.D.N.Y. filed Nov. 26, 1984). The two actions were consolidated in 1986 when the court approved the settlement. See infra. . The examination had two components, a written technical knowledge test and a video job sample test. The entire exam could not be used to rank the minority candidates because video equipment had been defective at some testing locations. Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_appel2_2_3	K	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 organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant. ATLANTIC FISHERMEN’S UNION, etc., et al. v. UNITED STATES. No. 4657. United States Court of Appeals First Circuit. June 18, 1952. Henry Wise, Boston, Mass., for appellants. Gerald J. McCarthy, Special Asst, to the Atty. Gen., and William J. Elkins and Alfred M. Agress, Special Attys., Department of Justice, Boston, Mass., for ap-pellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. PER CURIAM. Appellants are under indictment in the court below for violations of the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note. They moved for dismissal of the indictment on the ground that the district court was without jurisdiction of the subject matter, in that the matters alleged are within the exclusive jurisdiction of the National Labor Relations Board under the Labor Management Relations Act, 1947, as amended, 29 U.S.C.A. § 151 et seq., which to that extent has superseded the Sherman Act. It was also claimed that the subject matter of the indictment is within the exclusive jurisdiction of the Secretary of the Interior under the Fisheries Co-operative Marketing Act, 15 U.S.C.A. §§ 521, 522, which to that extent has superseded the Sherman Act. The district court entered an order denying the motion to dismiss. From this order an appeal was taken. We dismissed the appeal for lack of jurisdiction by order entered June 4, 1’952, on the ground that the order appealed from was merely an interlocutory order in the course of a criminal proceeding, whereas this court has jurisdiction of appeals in criminal cases, under 28 U.S.C. § 1291, only from “final decisions” of the district courts. In support of our order dismissing the appeal we cited Heike v. United States, 1910, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821; Catlin v. United States, 1945, 324 U.S. 229, 236, 65 S.Ct. 631, 89 L.Ed. 911; Dowling Bros. Distilling Co. v. United States, 6 Cir., 1946, 153 F.2d 353, certiorari denied Gould v. U. S., 1946, 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1622; United States v. Knight, 3 Cir., 1947, 162 F.2d 809. Appellants now move for an order staying mandate pending an application for a writ of certiorari, and also make application to us for an order directed to the district court, ordering that all proceedings in said court under the indictment he stayed for a reasonable time, and until further order' of this court or the order of the Supreme Court of the United States, to enable the parties aggrieved to obtain a writ of certiorari from the Supreme Court of the United States. The order of the district court denying the motion to dismiss the indictment was obviously not a “final decision” within the meaning of 28 U.S.C. .§ 1291 and the attempted appeal therefrom was, we think, obviously frivolous. We will not, therefore, take the responsibility of countenancing further delay in the trial of this criminal case. If any stay of the proceedings below is to be had, it must come from higher authority. The application for stay of proceedings is denied. It is ordered that mandate herein issue forthwith. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant? A. Business or trade association B. utilities co-ops C. Professional association - other than law or medicine D. Legal professional association E. Medical professional association F. AFL-CIO union (private) G. Other private union H. Private Union - unable to determine whether in AFL-CIO I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions) J. Public Employee Union - not in AFL-CIO K. Public Employee Union - unable to determine if in AFL-CIO L. Union pension fund; other union funds (e.g., vacation funds) M. Other N. Unclear Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. GIBSON v. UNITED STATES. NO. 23. Argued January 2, 3, 1946. Reargued October 23, 1946. Decided December 23, 1946. Hayden C. Covington argued the cause and filed briefs for petitioners. With him on a joint brief was Victor F. Schmidt. Irving S. Shapiro argued the cause for the United States. With him on the briefs were Solicitor General McGrath and Robert S. Erdahl. Walter J. Cummings, Jr. was also on the brief on the original argument. Mr. Justice Rutledge delivered the opinion of the Court. These cases carry forward another step the sequence in decision represented by Falbo, Billings, Estep and Smith. Each petitioner has been convicted for violating § 11 of the Selective Training and Service Act (54 Stat. 894, 50 U. S. C. App. § 311), Dodez for failing to report for work of national importance after being ordered to do so and Gibson for having unlawfully deserted the camp to which he had been assigned for such work. In each instance the conviction was sustained on appeal and certiorari was granted because of the importance of the questions presented for the administration of the Act. No. 23, 326 U. S. 708, restored to the docket for reargument before a full bench; No. 86, 328 U. S. 828. The principal issues relate to the time of completing the administrative selective process and the effect in each case of what was done in this respect upon the petitioner’s right to make defense in the criminal proceedings on various grounds going to the validity of the classification. In both cases tendered defenses of this character were excluded in the trial court and the exclusion was sustained on appeal. The effect was, in Gibson’s case, to rule that although he had completed the administrative process by reporting to the camp, pursuant to the requirement of the Falbo decision, nevertheless his remedy, if any, on account of the alleged misclassification was by habeas corpus, not by defense in the criminal cause. 149 F. 2d 751. In Dodez’ case it was held that by refusing to report for service at the camp he had failed to exhaust his administrative remedies and therefore under the Falbo doctrine he could not question his classification in the criminal suit. 154 F. 2d 637. I. Both petitioners are Jehovah’s Witnesses. Each has claimed consistently since the time of his registration that he is a minister of religion and therefore exempt from training and service under the Act. Each was denied this classification (IV-D), being classified instead as a conscientious objector (IV-E). Administrative appeals were exhausted. Pursuant to the classifications given and the applicable statutory provisions and regulations, Dodez and Gibson were assigned to work of national importance and ordered to report for such work at designated camps. Dodez refused to go to the camp. But Gibson, thinking the Falbo decision required him to report there in order to exhaust his administrative remedies, went to the camp, remained for five days, and then departed without leave. It is undisputed that he intended at no time to submit to the camp’s jurisdiction or authority and that he at all times made this intent clear. Everything he did was done solely to make sure that the administrative process had been finished and with a view to avoiding the barrier Falbo encountered in his trial when he sought to question his classification. Obviously the petitioners have sought to reach the same point, namely, the place at which the selective process is exhausted administratively, but have differed concerning its exact location. Dodez maintains that the point was reached, under the applicable regulations, when his preinduction physical examination had been given and he was found acceptable for service by the Selective Service System. This was on February 21, 1944, two months prior to the date (April 21, 1944) when he was ordered to report for work and refused to go. On the other hand, Gibson argues that until the preliminaries to actual service, including physical examination, were completed at the camp, he was not foreclosed by going through with them from exercising his choice not to submit to the camp’s jurisdiction, cf. Billings v. Truesdell, 321 U. S. 542, or, upon doing so, from asserting the invalidity of his classification in a criminal trial either for failing to report for service or for desertion from the camp. Cf. Estep v. United States, 327 U. S. 114; Smith v. United States, ibid. Clearly, on the facts and the issues, the question as to Dodez, like that in Falbo’s case, is whether he went far enough to exhaust the administrative process; while as to Gibson it is said that he went too far, that is, beyond the point of completing that process, and that this cut off the right of defense concededly available to him at that point. II. If these cases were controlled in all respects by the regulations effective when Falbo’s case was decided, Dodez would seem clearly to fall within the decision’s proscription. The Court there said: “Completion of the functions of the local boards and appellate agencies, important as are these functions, is not the end of the selective service process. The selectee may still be rejected at the induction center and the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp. The connected series of steps into the national service which begins with registration with the local board does not end until the registrant is accepted by the army, navy, or civilian public service camp. Thus a board order to report is no more than a necessary intermediate step in a united and continuous process designed to raise an army speedily and efficiently.” 320 U. S. at 553. Since acceptability for service was not finally determined under the regulations then applicable until the registrant had reached camp, had there undergone or waived the specified physical examinations, and thereupon had been found acceptable, and since Falbo had not taken those steps, the Court held he was not entitled to question his classification and therefore sustained his conviction. However, intermediate the Falbo decision and issuance of the order to Dodez to report, the regulations governing the procedure relating to selection for service were changed and in a manner which Dodez says relieved him from the necessity of going to the camp in order to complete the administrative process. The Government now concedes, we think properly, that Dodez is right in this view. It is not necessary to review in detail the regulations which were governing in Falbo’s case, since they are not controlling in either of the present ones. Although it is now argued that the Court misconceived their effect, we need only to note that it was within the registrant’s power to secure a physical examination by the camp physician by indicating a change in his physical condition, it could not be known in advance in any case whether he would demand it, and until this was determined it could not be known finally and irrevocably whether he would be “accepted for work of national importance.” The decision therefore correctly ruled that “the conscientious objector who is opposed to noncombatant duty may be rejected at the civilian public service camp” and that the board’s order to report there for service was “no more than a necessary intermediate step” in the continuous selective process, which was not ended until the last possibility for rejection had been exhausted. Under those regulations there was no final and conclusive acceptance for service until after those procedures at the camp were completed. It was exactly in this respect, however, that the changes made in the regulations immediately after the Falbo decision and shortly prior to issuance of Dodez’ order to report, together with still others made later but prior to the order to Gibson, were effective. The changes were extensive and important. The altered regulations are lengthy. We therefore give a summary in the margin, noting the more important differences between those applicable to Dodez and those in effect as to Gibson. It is of some importance to note that the changes affecting both registrants were made in consequence of the enactment of § 5 of Public Law 197, 78th Congress, approved December 5, 1943. 57 Stat. 596, 599, 50 U. S. C. App. § 304a. This required preinduction physical examinations to be given before the registrant was ordered to report for induction and service. Previously he first had been ordered to report for induction, was then given his preinduction examination by the armed forces and, on being found acceptable, was inducted at once. The major changes in the regulations giving effect to § 5 were made on January 10, 1944, one week after the Falbo decision came down, some taking effect on that date, others on February 2d following. These applied to Dodez. Still others not applicable to him but operative as to Gibson took effect on June 7,1944. The changed regulations, following out the command of § 5 of Public Act 197, provided for a preinduction physical examination to be given before issuance of the order to report for induction, rather than afterward. Section 629.1 of Amendment No. 200 (9 F. R. 440-442), effective January 10, 1944. This was the basic amendment. It applied to all registrants subject to call for service, including those classified IV-E. Moreover, by Amendment No. 210 (9 F. R. 1416), effective February 2, 1944, § 653.11 of the regulations applicable to men so classified was changed to eliminate the previously effective paragraph (c) providing for physical examination by the camp physician on indication of changed condition and consequent possible rejection at the camp. Instead the amended regulation stated simply that (a), when the “assignee” had reported to the camp, the camp director should “complete the Order to Report for Work of National Importance (Form 50)”; and (b) place, as specified, on the assignee’s papers, “a statement that [the] registrant is accepted” for work at the designated camp, stating also the date and place of acceptance; (c) the local board, “upon receiving notice that a registrant has been accepted for work,” should not “change his classification but shall note the fact of his acceptance” on Form 100; and (d), if the assignee failed to report when required, the camp director was to notify the Director of Selective Service. (Emphasis added.) The effect of the statute and the amended regulation was to place the order to report for service nearer the end of the administrative process than it had been previously, so far as concerned the power of the registrant to take action which might result in his rejection. The elimination of the provision permitting medical examination at the camp, by Amendment No. 210, removed any chance the registrant formerly had to secure rejection by demanding examination there, and left to be performed at the camp only the formal entries of “completing the Order to Report” and noting the fact, time and place of “acceptance” upon the assignee’s papers, together with the duties of notifying the local board of acceptance or the Director of Selective Service of failure to report. Although the amended regulations thus speak of “completing the Order to Report” and of placing on his papers “a statement that a registrant is accepted,” we agree that these were only formal matters to be performed by camp officials, and left nothing to be done by them or by the applicant after reaching the camp which might result in his being rejected or released from the duty to remain and perform the further duties imposed on him. To construe the regulations otherwise would be to force the registrant not only to perform all requirements affording possibility of relief but also to go through with purely formal steps to be taken by camp officials offering no such possibility. Exacting this would stretch the requirement of exhausting the administrative process beyond any reason supporting it. Cf. Levers v. Anderson, 326 U. S. 219. And, as appears from Gibson’s experience, by going through with those formalities Dodez would have found himself confronted with the Government’s contention that he had gone too far. We hold therefore, in accordance with Dodez’ view and the Government’s concession, that he was not required to report to the camp, under the regulations effective when his order to report became operative, in order to complete the administrative process; and that he therefore was not foreclosed by the Falbo decision from making any defense open to him in his criminal trial under the statute or the Constitution aside from the effect of that decision. Estep v. United States, 327 U. S. 114; Smith v. United States, ibid.; cf. Billings v. Truesdell, 321 U. S. 542. This view requires reversal of the judgment in No. 86 and remanding the cause to the District Court for a further trial. Dodez insists however that we should go further and determine the case finally upon the merits. He urges that the evidence properly tendered and admissible upon the excluded defenses, as well as that adduced, would support no other verdict than one of acquittal and that therefore the trial court should have sustained his motion to dismiss the cause. Accordingly he asks for a judgment here directing that such relief be given. In the Estep and Smith cases, after holding that the petitioners had been wrongfully denied opportunity to defend by attacking the validity of their classifications, this Court reversed the convictions and remanded the causes for new trials, stating: “We express no opinion on the merits of the defenses which were tendered. Since the petitioners were denied the opportunity to show that their local boards exceeded their jurisdiction, a new trial must be had in each case.” 327 U. S. at 125. Dodez’situ-ation is identical, in this respect, with those of Estep and Smith. Accordingly we remand the cause, as was done in the Smith and Estep cases, for further proceedings in the trial court, without expressing opinion upon those further issues. III. The Government urges that the conclusion we have accepted for Dodez forces the contrary result in Gibson’s case No. 23. The argument, as we have pointed out, is not that Gibson fell short of exhausting the administrative process, for he clearly had done this. It is rather that he went beyond what was required for that purpose, thereby became subject to the camp’s jurisdiction, and in doing this irrevocably foreclosed himself from defending against the charge of desertion on the ground that his classification was invalid. The Government’s position is founded upon analogy to the cases which hold that one who has been inducted into the armed forces, although wrongfully, becomes subject to .military jurisdiction, is thereafter amenable to its processes, and can secure his release from service or military custody only by resort to habeas corpus. Applying the analogy, the Government insists that when Gibson went to the camp and there went through the preliminary formalities for becoming a member, he became “inducted” as a camp member, just as one becomes a member of the armed forces by undergoing the induction ceremony, cf. Billings v. Truesdell, supra, even though the induction is in violation of his rights. Thereafter, the argument continues, Gibson became subject to the camp’s “jurisdiction,” just as the wrongfully inducted soldier would become subject to military jurisdiction; and, like the latter, cannot raise the illegality of his induction as a defense to a charge of violating any duty imposed upon inducted members; but must seek his relief, if any, by the writ of habeas corpus. Since the Act and the regulations laid upon camp members a duty to remain and perform the further duties prescribed for them, Gibson’s departure without leave amounted to desertion; his defense of wrongful classification is no more open to him than a defense of illegal induction would be open to a wrongfully inducted soldier violating a military order; and his remedy, if any, is to apply for release from the camp through habeas corpus. The argument is supported by extensive reference to the regulations in force when Gibson was ordered to report, including the changes affecting Dodez and the others which became effective June 7, 1944, by Amendment No. 236 (9 F. R. 6207). The important changes this amendment made were two, namely: (1) to reintroduce into § 653.11 the provision applicable in Falbo’s case but eliminated as to Dodez by Amendment No. 210, effective February 2,1944, for medical examinations to be given at the camp to determine change in condition; and (2) to add to the preexisting requirement for the camp director’s noting the fact of acceptance on the registrant’s papers the explicit new provision that this should be done “irrespective of the determination which is made as a result of the examination.” The Government also emphasizes two other regulations. One is § 652.12, requiring the local board to provide transportation for registrants reporting to it for transportation to the camp. The other, § 652.13, providing that a Class IV-E registrant “after he has left the local board in accordance with § 652.12 for work of national importance under civilian direction is under the jurisdiction of the camp to which he is assigned.” (Emphasis added.) The short effect of § 653.11, as altered at the time of Gibson’s order to report, was to retain the requirements for formal entries of “acceptance” and giving notice, at the camp, which applied to Dodez; to reintroduce the provision for physical examination there; but at the same time to nullify the possibility this presented in Falbo’s case for giving relief, by providing that the camp director should note the fact of acceptance “irrespective of the determination which is made as the result of” this examination. Taking account of revised § 653.11 as precluding any possibility for securing administrative relief at the camp, the Government regards § 652.13 as marking the precise and crucial line for crossing from the board’s jurisdiction into that of the camp, namely, at the point where the registrant begins his journey to the camp. To take this step, it says, is equivalent to the oath in the induction ceremony prescribed for men entering the armed forces, cf. Billings v. Truesdell, supra; and produces the .same consequences for foreclosing the defense of illegal classification, regardless of intention to submit to the camp’s jurisdiction, indeed in spite of Gibson’s unwavering manifestation of intention not to submit. Much of the argument was devoted to whether, on the basis of the Government’s analogy, § 652.13 .could be taken to fix the end of the “interval of choice,” cf. Billings v. Truesdell, supra, in view of the constantly changing character of the regulations, the absence of any prescribed induction ceremony such as the Billings case involved, and the consequent difficulty confronting one seeking to comply with the Falbo decision in ascertaining the exact location of such a line. We do not find it necessary to consider the conflicting contentions in this respect, or therefore to scrutinize the regulations with a view to locating such a point. More fundamental considerations are controlling. We have said that the Government’s argument is founded entirely upon analogy, because no case has ruled that one who becomes subject to the “jurisdiction” of -a work camp under the Selective Service procedure thereby forfeits his right to defend against a charge of desertion or other breach of duty, on the ground that his classification was invalid. Nor has it been held that his only recourse for release from the camp is by way of habeas corpus. Furthermore, we think there are compelling reasons why the analogy does not hold true. In the first place, there are obvious and important differences between the two situations which it is sought to connect by the claimed resemblance. Not the least is that in the one instance the person concerned crosses the vast gulf between civil and military jurisdiction, with all the attendant consequences for change in status and rights, whereas in the other no such chasm is traversed. The alleged transfer of “jurisdiction” is only from one civilian agency to another, both branches of the Selective Service System, and there is none at all from the authority of the civilian courts as agencies for the enforcement of obligations imposed by the law. There is in fact no change in “jurisdiction” whatsoever, except in the sense that from the time he becomes a camp member the registrant’s duties are different and his orders come through different channels of the same agency. Unlike the man “actually inducted,” the person classified IV-E remains a civilian; his duties are not military in character; he is not subject to military discipline or authority; and for violation of duties or orders he cannot be tried by court martial or military tribunal. On the contrary, the Selective Service Act expressly provides the same civil penalties and mode of trial for violating duties arising when he enters the camp as for those arising before that time. There is therefore no such profound change in rights, duties and status as occurs when one crosses the line between civil and military jurisdiction by being “actually inducted” under the rule of Billings v. Truesdell, supra. It was this change and the consequences it entailed, together with the statute’s command that no one should be tried by military or naval court martial in any case arising under the Act until he had been actually inducted, which we there held to require placing the line precisely, not only for exhausting administrative remedies under the Falbo rule, but also for marking the point of actual induction at which the registrant’s right ends to choose between going forward into the service and incurring the civil liability for breach of that duty. The person classified as conscientious objector is never confronted with that choice. He is relieved by the Act from any duty to perform military service. He is not threatened with induction. He is in fact farther removed from military status or jurisdiction after he is finally assigned to civilian public service of national importance, and for this reason is rejected for military service, than-he was before that time. His choice is not between going into service and taking the civil penalty laid for violating that duty. It is between performing civilian service under civilian authority and incurring the civil penalty for refusing to do so. Moreover, in the case of one entering the armed forces, the loss of civil rights, including those of recourse to the civil courts other than by way of habeas corpus, results altogether by virtue of the change from civilian to military status. The reasons underlying those rulings do not apply in the case of one who does not undergo that change, remains at all times a civilian, subject only to civilian duties and to civil penalties for violating them. There is not the same necessity or compulsion in such a case for bringing about forfeiture of civilian rights, including remedies for questioning the validity of the order the registrant is charged with violating. That compulsion arises from the necessity for preventing interruption of military processes by intrusion of the civil courts beyond the essential minimum of keeping open the habeas corpus channel to show that the military authority has exceeded its jurisdiction in dealing with the individual. It is on this foundation that the forfeiture of other civil remedies is held to take place. But there is no such necessity, or therefore any such foundation for forfeiture, in the case of one classified as a conscientious objector and assigned for work of national importance. Serious as are the consequences of his refusal to perform that work, dealing with such breaches of duty by the civil courts does not involve, in the remotest sense, interruption or interference by civilian authority with military processes or jurisdiction. Entirely wanting therefore is any such foundation for forfeiture of civil rights as exists in the case of one inducted into the armed services. Without such a foundation the analogy dissolves and with it the asserted forfeiture. This becomes even more clear when it is recalled that one basis for the forfeiture, which the Government has maintained, is that habeas corpus is available for the person classified IV-E and wrongfully denied classification and exemption as a minister of religion. This remedy, it was asserted originally, is adequate and exclusive, and therefore should be held to foreclose resort to other forms of relief. But here again the asserted analogy fails. It has been clearly established that the remedy by way of habeas corpus is open to the wrongfully inducted member of the armed forces to secure his release. But at the argument it was conceded that neither the camp director nor other officials of the Selective Service System are authorized to use force to arrest or restrain one who refuses to remain in the camp. And this, it was also admitted, would make doubtful the availability of relief by way of habeas corpus. Indeed it might well be urged that the remedy is not available for one charged with violation of any duty, whether failure to report to the camp, to remain there, or to perform other obligations, since the only compulsion laid upon such a person by the Act or otherwise is the force of the legal command plus the provision for criminal penalty in case of disobedience. We need not decide this question, however, and we express no opinion upon it. For it is enough to destroy the analogy the Government seeks to draw that the remedy by habeas corpus is an uncertain one. Should it be found unavailable and at the same time we should rule that petitioner’s defense could not be made in the criminal proceeding, he would be left entirely without remedy, a result consistent neither with our decision in the cases of Estep and Smith, supra, nor with the statute. No more, we think, is it consistent with the Act or those rulings to foreclose the right of defense upon the basis of uncertainty whether the habeas corpus remedy might be had. Finally, Congress has provided expressly for enforcing the duty to report to the camp for work and duties arising thereafter through the criminal proceedings and penalties prescribed by § 11.. In its view these were adequate for the purpose. Nothing in the section or the statute, in the light of our prior decisions, can be taken to indicate that Congress intended persons charged with violating such duties to be deprived of their rights of defense on the ground of invalid classification, either absolutely should habeas corpus prove unavailable or contingently depending upon how the doubt concerning that remedy’s availability might be resolved. The Government concedes that Congress intended some remedy to be available. We know of no way by which this can be assured, in such a case as Gibson’s, otherwise than by permitting the defense to be raised in the criminal trial. The analogy failing, for both of the reasons we have stated, by which it is sought to confine the remedy to habeas corpus, we think the defense has been left open for presentation in this case and should have been allowed. Estep v. United States, 327 U. S. 114; Smith v. United States, ibid. Gibson, like Dodez, and for similar reasons, insists that we should dispose of the case upon the merits, by examining and sustaining his defense. The same course should be followed for Gibson in this respect as was directed for Dodez. We express no opinion concerning whether a different result might follow for one in Gibson’s position if he should remain at the camp for a substantially longer period and then depart without leave. The question raised concerning venue has been determined adversely to Gibson’s contention by our decision in United States v. Anderson, 328 U. S. 699. The judgments are reversed and the causes are remanded to the District Courts from which they came, for further proceedings consistent with this opinion. Reversed. Mr. Justice Murphy joins in the opinion of the Court for the reasons stated therein and for the additional reasons set forth in his dissenting opinion in Falbo v. United States, 320 U. S. 549, 555, and in his concurring opinion in Estep v. United States, 327 U. S. 114, 125. Falbo v. United States, 320 U. S. 549; Billings v. Truesdell, 321 U. S. 542; Estep v. United States, 327 U. S. 114; Smith v. United States, ibid. Section 11 provides, in part: “Any person charged as herein provided with the duty of carrying out any of the provisions of this Act, or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty, . . . shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment . . . Section 652.11 (a) of the regulations imposes the duty on persons classified IV-E to comply with the order to report for work of national importance; and by § 653.12 assignees are required to report to the camp to which they are assigned and to remain therein until released or transferred elsewhere by proper authority, except when on authorized missions or leave. 149 F. 2d 751 (C. C. A. 8); 154 F. 2d 637 (C. C. A. 6). Apparently in both cases the important changes in the applicable regulations made after the Falbo decision were not called to the attention of the trial courts or the Circuit Courts of Appeals. The exemption is provided by § 5 (d) of the Act, 54 Stat. 885, 888, as follows: “Regular or duly ordained ministers of religion, and students who are preparing for the ministry in theological or divinity schools recognized as such for more than one year prior to the date of enactment of this Act, shall be exempt from training and service (but not from registration) under this Act.” Pursuant to § 5 (g) of the Act, which provides that persons so classified shall be assigned to noncombatant service or, if conscientiously opposed to this, then to “work of national importance under civilian direction.” See text Part II infra at note 19; also note 13. At that time § 653.11 (c) of the Selective Service Regulations provided: “If the assignee indicates that his physical condition has changed since his final-type physical examination for registrants in Class IV-E, the camp physician shall examine him with reference thereto. If the assignee is not accepted for work of national importance, the Camp Director will indicate the reason therefor, and the assignee, pending instructions from the Director of Selective Service, will be retained in the camp or hospitalized where necessary.” Cf. note 10. This provision, effective by Amendment No. 40 on March 16, 1942 (7 F. R. 2093), was eliminated entirely by Amendment No. 210 (9 F. R. 1416), effective February 2,1944, a little more than two months prior to the date specified for Dodez to report for work, namely, April 21, 1944; but was restored in modified form on June 7, 1944, by Amendment No. 236 (9 F. R. 6207), nearly two months before Gibson was ordered to report on August 21 of that year. A confession of error on the part of the United States “does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.” Young v. United States, 315 U. S. 257, 258-259. The contention is that § 653.11 (e) of the regulations as it then stood, see note 8, provided for physical examination at the camp and possible rejection there only if the registrant on reporting indicated a change in his physical condition and that this was effective only as to persons sustaining such a change, not to others, of whom Falbo was one. The argument assumes that the registrant’s actual condition, not the possibility that a change might occur and be found in any case, was controlling not only to determine the outcoifae of the examination, but to foreclose the possibility that change might be “indicated” and, in that event, final determination of acceptability would be made after the examination. The regulation clearly contemplated that, upon receipt of such instructions from the Director of Selective Service, the registrant might be rejected or released. The decision was rendered January 3, 1944. The basic changes in the regulations were made January 10, 1944. See text infra at notes 13-17. After a registrant has been classified IV-E he is given a preinduction physical examination. Reg. §§ -629.1, 629.2. If found acceptable for service he is issued a certificate of fitness. Reg. § 629.32. Thereafter the local board notifies the Director of Selective Service that the registrant is available for assignment to work of national importance, Reg. § 652.1, and such an assignment is sent to the local board. Upon receipt thereof, the local board issues to the registrant an order to report for work of national importance, commanding him to report at a designated time and place, Reg. § 652.11. When the registrant reports, transportation to a camp for work of national importance is furnished, Reg. § 652.12. Thereafter he “is under the jurisdiction of the camp to which he is assigned.” The local board then can take no further steps with regard to such registrant without instructions from the Director of Selective Service, but should report any information to the Director of Selective Service which might affect the registrant’s status, Reg. § 652.13. Upon arrival at the camp the registrant (now called assignee in the regulations) is given a physical examination, although at the time the case of Dodez arose specific provision for such an examination was not made in the regulations. See note 8. It was merely provided that “the camp director shall, on the bottom of page 4 of the Original and First Copy of the Report of Physical Examination and Induction (Form 221), place a statement that a registrant is accepted for work of national importance at the civilian public service camp to which the registrant has been assigned.” Reg. § 653.11 (b). However, this regulation subsequently was amended in the form applicable to the case of Gibson. See note 28 infra. The statute, in so far as is now material, provided: “Any registrant within the categories herein defined when it appears that his induction will shortly occur shall, upon request, be ordered by his local board in accordance with schedules authorized by the Secretary of War, the Secretary of the Navy, and the Director of Selective Service, to any regularly established induction station for a preinduction physical examination, subject to reexaminations. “The commanding officer of such induction station where such physical examination is conducted under this provision shall issue to the registrant a certificate showing his physical fitness or 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:
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. DENNIS v. UNITED STATES. No. 14. Argued November 7, 1949. — Decided March 27, 1950. George W. Crockett, Jr. argued the cause for petitioner. With him on the brief were Earl Dickerson, David M. Freedman and Harry Sacher. Solicitor General Perlman argued the cause for the United States. With him on the brief were Assistant Attorney General Campbell, Robert S. Erdahl and Harold D. Cohen. Robert J. Silberstein filed a brief for the National Lawyers Guild, as amicus curiae, urging reversal. Mr. Justice Minton delivered the opinion of the Court. The question we have for determination here is whether a challenge for cause to jurors on voir dire because of employment by the Federal Government should have been sustained under the circumstances of this case. Petitioner was convicted of violating R. S. § 102, 2 U. S. C. § 192, for willfully failing to appear before the Committee on Un-American Activities of the House of Representatives in compliance with a subpoena duly served upon him. The Court of Appeals affirmed, 84 U. S. App. D. C. 31, 171 F. 2d 986. We granted certiorari limited to the question whether Government employees could properly serve on the jury which tried petitioner. 337 U. S. 954. Petitioner voluntarily appeared before the House Committee on Un-American Activities which had under consideration two bills to outlaw the Communist Party. Petitioner was and is General Secretary of the Communist Party of the United States. On his voluntary appearance before the Committee, petitioner refused to answer questions as to his name and the date and place of his birth. The Chairman of the Committee directed that a subpoena be served forthwith upon petitioner, requiring him to appear before the Committee on April 9, 1947. On the appointed date petitioner sent a representative but did not appear in accordance with the subpoena. The Committee reported his refusal to appear to the House of Representatives, and the House adopted a resolution certifying the report of the Committee to the United States Attorney for the District of Columbia. Petitioner was subsequently indicted. When the case was called for trial, petitioner made a motion for transfer upon the ground that he could not obtain a fair and impartial trial in the District of Columbia. In his affidavit supporting the motion, he posited this contention mainly on the ground that Government employees, who comprise a large part of the District’s population, are subject to Executive Order 9835, 12 Fed. Reg. 1935, providing standards for their discharge upon reasonable grounds for belief that they are disloyal to the Government of the United States. He argued that Government employees would be afraid to risk the charge of disloyalty or possible termination of employment which would allegedly flow from a vote for acquittal. The motion for a transfer was denied. Both sides conducted further voir dire examination at the conclusion of the court’s questioning of the panel. Attorney for petitioner questioned individually each member of the panel who indicated that he was employed by the Government. He then challenged for cause all Government employees. The court denied the challenge. Petitioner exercised two of his three peremptory challenges against Government employees. He exhausted all his peremptory challenges. Seven of the twelve finally selected were Government employees. Each of the seven expressed the belief that he could render a fair and impartial verdict. Is petitioner entitled to a new trial because his challenge to the Government employees for cause was not sustained? The question of the presence of Government employees on District of Columbia juries is not a new controversy. It has been before this Court on three previous occasions. Crawford v. United States, 212 U. S. 183; United States v. Wood, 299 U. S. 123; Frazier v. United States, 335 U. S. 497. In the Crawford case the defendants were charged with a conspiracy to defraud the United States. The Court held that the statute prescribing the eligibility of jurors in the District of Columbia did not control the subject. The Court turned to the common law in force in Maryland when the District was formed, and found that a servant was subject to challenge for cause at common law where the master was party to the case on trial. In such a case, bias would be implied as a matter of law. The Court concluded that it was error to deny a challenge for cause to a Government employee in a case to which the Government was a party. In 1935 Congress, prompted by the paucity of qualified jurors which resulted from the Crawford decision, passed an Act redefining eligibility for jury service in the District of Columbia. After exempting certain classes, the Act provided: “All other persons, otherwise qualified according to law whether employed in the service of the Government of the United States or of the District of Columbia . . . shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service . . . 49 Stat. 682, D. C. Code, § 11-1420 (1940). The constitutionality of this Act was sustained in United States v. Wood, 299 U. S. 123, where the defendant was charged with petty larceny from a private corporation. The defendant contended that the presence of Government employees on the jury denied the right of trial by an impartial jury within the meaning of the Sixth Amendment to the Constitution of the United States. He pointed out that under the common law as expounded by Blackstone, a King’s servant and therefore a Government employee could not serve on a jury, and he argued that this view was carried into the Sixth Amendment. Chief Justice Hughes, speaking for the Court, meticulously examined the problem. He found that Blackstone’s statement of disqualification had reference only to servants of private parties, and that there was no established practice with respect to the King’s servants at common law. The Court was of the view that even if such a common law disqualification existed, Congress had power to remove it. Unlike the statute in the Crawford case, the 1935 Act left no doubt that Congress intended to qualify Government employees as jurors. The constitutionality of such a declaration was presented for the first time. The opinion carefully emphasized that the Act left accused persons free to show the existence of actual bias. Only the question of implied bias was presented. The Court concluded that the guarantee of an impartial jury was not impaired, stating: “It is manifest that the Act was passed to meet a public need and that no interference with the actual impartiality of the jury was contemplated. The enactment itself is tantamount to a legislative declaration that the prior disqualification was artificial and not necessary to secure impartiality. ... To impute bias as matter of law to the jurors in question here would be no more sensible than to impute bias to all storeowners and householders in cases of larceny or burglary.” United States v. Wood, supra, 148-149, 150. Only last term in Frazier v. United States, 335 U. S. 497, the problem of jury service by Government employees was reexamined. There the defendant was tried and convicted of violating the Narcotics Act by a jury of the District of Columbia composed entirely, due to circumstances fortuitous or otherwise, of Federal Government employees. Mr. Justice Rutledge, speaking for the Court, reexamined the rule of the Wood case that Government employees are not disqualified as a matter of law from serving on a jury in a case to which the Government is a party. Government employees were again held to be subject to challenge only for “actual bias.” It would be a work of supererogation to attempt to clarify the statement of the law after the Wood and Frazier cases. Some may doubt the wisdom of the Court’s decision in laying down the rule, but there can be no doubt that this Court has spoken very clearly, not only once, but twice. No question of actual bias is before us. The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact. In both the Wood and Frazier cases this Court stressed that while impaneling a jury the trial court has a serious duty to determine the question of actual bias, and a broad discretion in its rulings on challenges therefor. United States v. Wood, supra, 133-134, 150; Frazier v. United States, supra, 511-512. We reaffirm those principles. In exercising its discretion, the trial court must be zealous to protect the rights of an accused. And we agree that this the court must do without reference to an accused’s political or religious beliefs, however such beliefs may be received by a predominant segment of our population. Ideological status is not an appropriate gauge of the high standard of justice toward which our courts may not be content only to strive. But while one of an unpopular minority group must be accorded that solicitude which properly accompanies an accused person, he is not entitled to unusual protection or exception. Petitioner asserts that in order to secure the constitutional guarantee of trial by an impartial jury all Government employees must be held, in the special circumstances of this case, to be biased as a matter of law. It is not contended that bias appears as a fact from the record. As far as it appears, the court was willing to consider any evidence which would indicate that investigatory agencies of the Government had recognized in the past or would take cognizance in the future of a vote of acquittal, but no such proof was made. Nor was there evidence with respect to the existence of a climate of opinion among Government employees that they would jeopardize their tenure or provoke investigation by such a verdict. Rather petitioner asks that bias be implied from the recitation of the following circumstances: He is a Communist; the instigator of the charges is the Un-American Activities Committee which allegedly would take notice of a vote for acquittal; the issue in the case- is contempt of Congress; in contempt cases the Government’s interest is the vindication of a direct affront, as distinguished from its role in an ordinary prosecution. But petitioner primarily bases his case on a request, in effect, that judicial notice be taken of an aura of surveillance and intimidation which is said to exist in the District because of Executive Order 9835, outstanding at the time of the trial. The "Loyalty Order,” as it is popularly known, requires the investigation of all persons entering civilian employment with the United States; as to those already in service, heads of departments and agencies are charged with the duty of making certain that disloyal persons are not retained. Petitioner maintains that because of this Order, Government employees would be hesitant to vote for acquittal because such action might be interpreted as “sympathetic association” with Communism. Of course, the Loyalty Order could be the subject of judicial notice. Such notice, however, would give only limited illumination. It is proper to observe that the Loyalty Order is not directed solely against Communists, and that the crime of which petitioner was convicted is not a crime peculiar to Communists. Further, the Loyalty Order preceded the instant trial only by about three months. It was promulgated by the President on March 21, 1947. This trial began on June 23, 1947, and was concluded on June 26, 1947. On May 9, 1947, the President submitted to Congress a request for an appropriation to carry out the Loyalty Order, which was not enacted into law until July 31, 1947. It was not until August 18, 1947, that Standard Form 84, requesting certain pertinent information from each federal employee, was made available. The administrative implementation of Executive Order 9835, which was yet to come, was apparently not the subject of anticipatory fear by these jurors. Their answers to interrogatories on the influence of the Loyalty Order were categorically to the contrary. We must credit these representations, and this is particularly so in the absence of any evidence which would indicate an opposite opinion among Government employees. One may not know or altogether understand the imponderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiased mind in a certain matter. Ultimately, petitioner’s contentions amount to this: Since he is a Communist, in view of all the surrounding circumstances an exception must be carved out of the rule laid down in the statute, and construed in Wood and Frazier, that there is no implied bias by reason of Government employment. Thus the rule would apply to anyone but a Communist tried for contempt of a congressional committee, but not to a Communist. We think the rule in Wood and Frazier should be uniformly applied. A holding of implied bias to disqualify jurors because of their relationship with the Government is no longer permissible. The Act makes no exception for distinctive circumstances. It states that: “All . . . persons . . . whether employed in the service of the Government of the United States or of the District of Columbia . . . shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service . . . .” Preservation of the opportunity to prove actual bias is a guarantee of a defendant’s right to an impartial jury. We adhere to our holding that the enactment of the statute is within the power of Congress, and that therefore employees of the Federal Government are not challengeable solely by reason of their employment. It follows that we are unable to conclude that the failure to sustain the challenge for cause denied petitioner an “impartial jury.” “Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, supra, 145-146. In this case, no more than the trial court can we without injustice take judicial notice of a miasma of fear to which Government employees are claimed to be peculiarly vulnerable— and from which other citizens are by implication immune. Vague conjecture does not convince that Government employees are so intimidated that they cringe before their Government in fear of investigation and loss of employment if they do their duty as jurors, which duty this same Government has imposed upon them. There is no disclosure in this record that these jurors did not bring to bear, as is particularly the custom when personal liberty hinges on the determination, the sense of responsibility and the individual integrity by which men judge men. The judgment is Affirmed. Mr. .Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case. H. R. Doc. No. 242, 80th Cong., 1st Sess. (1947); 93 Cong. Rec. 4977 (1947). 61 Stat. 696, 700. See Investigations Subcommittee on Expenditures, Investigation of Federal Employees Loyalty Program, S. Rep. No. 1775, 80th Cong., 2d Sess. (1948). Federal Personnel Manual 12-4. In a press release dated November 7, 1947, the Civil Service Commission announced the appointment of the Loyalty Review Board. A statement of the Board with respect to its regulations was published on January 20, 1948. 13 Fed. Reg. 253. “Mr. McCabe: You are familiar with the Government loyalty oath investigation? “Juror Holford: I believe I am. I have heard something of it. “Mr. McCabe: Do you feel that rendering a verdict of not guilty in this case, if you come to that conclusion, it would stop you, any criticism or embarrassment among your fellow employees? “Juror Holford: None whatsoever. “Mr. McCabe: Or by your superiors? “Juror Holford: No. * “Mr. McCabe: You would not have any thought that would be taken as evidence of friendliness to communism? “Juror Holford: No; I am not worried about my job that way.” “Mr. McCabe: Now, Mr. Jones, you have heard, have you, of the loyalty test or loyalty investigation which is going on to test the loyalty of Government employees? Have you heard of that? “Mr. Jones: Yes, I have. “Mr. McCabe: Are you aware of the fact that one of the tests that might disqualify or prevent you from Government employment is friendly association with any Communist person or any Communist organizations? “Mr. Jones: That would not. I am a Civil Service employee. I have taken an examination for my job. “Mr. McCabe: Yes. Are you aware of the fact that, despite any Civil Service protection, still a finding that you were in friendly association with any Communist or Communist organization would render you ineligible to continue in your Government position? “Mr. Jones: It would not. “Mr. McCabe: What? “Mr. Jones: It would not.” The replies of the other jurors were in a similar vein. 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_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. FRIEDMAN v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. May 7, 1925.) No. 4272. 1. Forgery <s=>5 — Indictment charging sale of altered Liberty Bonds with intent to defraud others to whom they might be sold held to state offense. Indictment, charging sale and delivery of Liberty Bonds which had been altered with intent to defraud others to whom purchaser might sell them, stated violation of Criminal Code, § 151, notwithstanding person to whom accused sold bonds was not deceived; intent to defraud being sufficient, if it is to operate against future transferees. 2. Criminal law <§=»l 167(2) — Where conviction on one count of indictment is sustainable, defects in other counts are immaterial. Where conviction under one count is sustainable, and sentence is not excessive under that count, defects in other counts are immaterial. 3. Forgery <®=»I0 — Uttering or selling altered Liberty Bonds is an offense. Uttering or selling altered Liberty Bonds violates Criminal Code, § 151, notwithstanding alteration makes bonds void. 4. Forgery <S=>44('/2) — Accused’s knowledge that Liberty Bonds sold by him had been altered held proved. Evidence helé to warrant finding that accused delivered Liberty Bonds to purchaser, knowing that they had been altered, in violation of Criminal Code, § 151. In Error to the District Court of the United States for the Western District of Kentucky; Charles H. Moorman, Judge. Sol Eriedman was convicted of uttering and selling Liberty Bonds which had been altered, and he brings error. Affirmed. Leopold Saltiel, of Chicago, Ill., for plaintiff in error. Claude Hudgins, Asst. U. S. Atty., of Louisville, Ky. (W. S. Ball, U. S. Atty., and Lilburn Phelps, Asst. U. S. Atty., both of Louisville, Ky., on the brief), for the United States. Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges. PER CURIAM. Eriedman was convicted under two counts of an indictment charging that he violated section 151 of the Criminal Code by uttering and selling Liberty Bonds which had been altered. The bonds in question had been in fact stolen, and then altered by erasing the name of the registered holder and substituting therefor another and fictitious name. They were then transferred by Eriedman in connection with an assignment by the purported registered holder. One count charged that he had sold and delivered these bonds to Erey, with intent to defraud Frey. The 'other count charged the same delivery with intent to defraud others, to whom Erey might sell them. It is now said that Erey had knowledge of the alteration, and so the proofs do not sustain a conviction under the first count, while the second count does not state an offense. We think the second count is not defective in this respect. The intent to defraud is sufficient, if it is to operate against a future transferee, even though the person to whom delivery is made is not deceived. U. S. v. Nelson, 27 Fed. Cas. 80. The conviction under one count being sustainable, and the sentence being not excessive under that count, defects under other counts are immaterial. It is urged that, upon the making of the alteration, the bonds became void and were no longer an obligation of the United States and that to utter or sell a void paper is not within the statute. We cannot accept this construction. It would leave nothing for the statute to operate upon, since every “forged, counterfeited or altered obligation or other security of the United States” is in fact void. There was sufficient evidence to support the jury’s finding that Friedman, when delivering the bonds, knew of the alteration. The bonds were in evidence, and there was undisputed testimony that the fact of alteration was obvious. Further, Friedman’s story of how he came into possession of them was not convincing. In the rulings as to the admission of evidence, we find no reversible error, if any. The judgment is affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_stpolicy	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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". BADENHAUSEN et al. v. GUARANTY TRUST CO. OF NEW YORK et al. GUARANTY TRUST CO. OF NEW YORK et al. v. SEABOARD AIR LINE RY. CO. et al. No. 5249. Circuit Court of Appeals, Fourth Circuit. Aug. 2, 1944. Abraham Mitnovetz, of New York City, and James H. Price, of Greenville, S. C. (Harry O. Levin, of Baltimore, Md., James D. Poag, of Greenville, S. C., and Llewellyn S. Richardson, of Norfolk, Va., on the brief), for appellants. W. H. B. Simpson, pro se. Edwin S. S. Sunderland, Leonard D. Adkins, and Irwin L. Tappen, all of New York City (Thomas O’G. FitzGibbon, of New York City, Leon T. Scawell, of Norfolk, Va., Carlyle Barton, George R. Cole-burn, and Thomas J. Grogan, Jr., all of New York City, Theodore S. Garnett, of Norfolk, Va., Edward E. Watts, Jr., of New York City, Robert D. Ruffin, of Norfolk, Va., Bernard Meredith, of Richmond, Va., Eben J. D. Cross, of Baltimore, Md., Humes, Buck, Smith & Stowell, of New York City, and Baird, White & Lanning and George M. Lanning, all of Norfolk, Va., on the brief), for appellees. Before PARKER, SOPER, and DOBIE, Circuit Judges. SOPER, Circuit Judge. This appeal is taken from a decree of the District Court in an equity proceeding, whereby a plan for the reorganization of the Seaboard Air Line Railway Company, prepared by a special master, was approved after it had been modified in certain particulars in accordance with proposals of a Conference Committee of representative secured creditors appointed by the court. The Railway Company has been in receivership for more than thirteen years. On December 23, 1930 receivers were appointed in the District Court of the United States for the Eastern District of Virginia in an equity suit brought by an unsecured creditor; and on the same day the same receivers were appointed in ancillary proceedings in the District Court of the Southern District of Florida. During this period bills for foreclosure have been filed in the cause by the trustees under various mortgages secured by Seaboard property and all of these proceedings have been consolidated in the cause pending in the Virginia District. Several efforts have been made to effect a plan of reorganization. In 1935 at the instance of the court the receivers made studies and proposals looking toward a reorganization, but the earnings of the Railway were so poor that the principal secured creditors opposed the formulation of a plan at that time. On October 27, 1939 the court appointed Tazewell Taylor of Norfolk, Virginia, special master to prepare and submit a plan of reorganization. He conducted exl ended hearings during forty days at various times in 1940, 1941 and 1942, took evidence, received statistical studies, plans submitted by parties in Interest, and finally on July 20, 1943, after a prolonged study of the complex factual material, submitted his report. Proposed plans were filed with the special master by the Consolidated Committee, representing the holders of the First and Consolidated Mortgage, one of the general mortgages of the system, and by the Underlying Committee representing the bonds under ten separate underlying mortgages on the Seaboard system. The Consolidated Committee employed Miles C. Kennedy, an expert engineer or statistician, and the Underlying Committee employed William Wyer, likewise an expert in railroad accounting and reorganization. Both experts testified as witnesses in the case. Hearings in the District Court upon exceptions to the master’s report took place at three sessions, aggregating thirteen days in October, November and December, 1943. In the interval between the second and third sessions a Conference Committee appointed by the court considered the testimony that had been offered, conferred with interested parties and recommended modifications of the master’s plan, which the court approved. The Séaboard’s Secured Debt. The extent of the railway system and the many kinds of indebtedness including sccurities issued under numerous mortgages covering all or a part of the property have greatly increased the difficulties of reorganization. The Seaboard owns about 3300 miles of railroad and operates an additional 844 miles under leases or operating agreements with subsidiary corporations in Virginia, North Carolina, South Carolina, Georgia, Alabama and Florida. Two thousand miles are subject to ten separate underlying divisional mortgages on which $ 48,549,767.20 in principal and interest was owing on January 1, 1943. There are also four general mortgages aggregating 160,439,473.33 in principal and interest on that date, which are subject to the underlying divisional mortgages but constitute first liens on certain portions of the system. There are 36,806,862.55 O'f collateral trust obligations. There is in addition the debt of subsidiary railroad and terminal companies which amounts, principal and interest, to the sum of 55,059,209.16; and additional indebted- , ness and unpaid accrued interest not included in the above amounting to 983,290.03. There were also outstanding on January 1, 1943 38,412,882.37 in obligations of the receivers consisting of receivers’ equipment trust certificates, receivers’ certificates and other indebtedness. Thus the grand total of the principal and interest of the secured debt was $340,251,484.64 During the receivership the receivers have purchased approximately $34,000,000 of outstanding receivers’ certificates and other secured obligations of the system, most of which were acquired under orders of the court without prejudice to the claims of the parties as to the application of the funds. The receivers have also spent more than $50,000,000 in improvements to the system. The unsecured claims, principal and interest, amount to $1,193,723.97 as of August 1, 1942. The par value of the outstanding capital stock, preferred and common, aggregates $85,110,662.21. The insolvency of the Railway Company is not disputed and the plan makes no provision for the participation in the new company of the preferred or common stockholders or the unsecured creditors of the old company. No objection to the plan on this account is raised on this appeal. The New Capitalization. The special master’s plan of reorganization proposes that all of the properties owned by the Seaboard, all the wholly owned or partly owned subsidiaries, and all the leased lines shall be included in one railroad system. The plan involves two fundamental features: (1) A reduced capitalization for the new company composed of various kinds of securities; and (2) the allocation of these securities among the many classes of secured creditors of the present company. The proposed new capitalization is based upon the earnings, history and prospects of the Railway, as found by the special master. The operating revenues during the fifteen year period ending in 1940 were greatest in the year 1926 when $71,274,835 with a total gross income of $14,640,842 was received. The lowest receipts occurred in 1932 when these figures were $30,791,618 and $720,031 respectively. In 1940 they were $48,596,779 and $4,761,-958 respectively. The average annual gross income for the ten year period 1931-1940 was $2,936,004 and for the five year period 1936-1940 $3,718,053. A marked increase occurred in the succeeding three years as is shown by the following tabulation. Gross Operating Gross Revenues Income 1941 ........... $ 64,729,178 $10,664,016 1942 ........... 110,467,787 34,566,102 1943 (estimated) 137,000,000 28,000,000 It is of course recognized that this great increase is due to war activities which will not continue and that upon the recurrence of normal times a very great shrinkage is inevitable. With these facts in view the capitalization finally proposed by the special master as of January 1, 1944 is as follows : Title of Issue To Be Assumed or Issued on Reorganization Annual Charges, Interest and Dividends Rentals and mise, charges, undisturbed................... $ 110,000 Undistributed Receivers’ Equipment Trusts.............. $ 11,870,000 336,000 First Mortgage Forty Year 4% Bonds, Series A (distribution) ......................................... 32,500,000 1,300,000 Total fixed interest debt........................... $ 44,370,000 Total annual fixed charges.........'................ $1,746,000 Capital Fund (discretionary, not in excess of 3%% of Total Railway Operating Revenues or $1,625,000, whichever is greater...................................... 1,625,000 Sinking Fund for First Mortgage Bonds Series A (1%).. 325,000 Total Annual Charges prior to interest on Income Mortgage Bonds......................................... 3,696,000 Income Mortgage 50-Year 4%% Bonds, Series A......... 52,500,000 2,362,500 Sinking Fund for Income Mortgage Bonds, Series A ($262,500)...................................... .. .. Total fixed and contingent debt......................■ $ 96,870,000 Total annual charges before dividends............... $6,058,500 Preferred stock 5% ($100 par value).................... 15,000,000 750,000 Total par value of securities........................ $111,870,000 Total annual charges against income through preferred stock dividends............................ $6,808,500 Common Stock — 850,000 shares of no par value (at $100) .. 85,000,000 Total capitalization ............................... $196,870,000 Under this set-up, the total of the interest on the first mortgage bonds and fixed annual charges prior to interest on the income bonds and dividends will be $3,696,-000. The interest on the income bonds if earned will be $2,362,500, making a total annual charge before dividends of $6,058,-500 on a principal indebtedness fixed and contingent of $96,870,000. If the net earnings exceed $7,000,000, a contingency not unlikely during the present emergency, it will be possible not only to pay a dividend on the 5% preferred stock but also some dividend on the no par capital stock. The District Judge recognized that the proposed new capitalization must receive the approval of the Interstate Commerce Commission under 49 U.S.C.A. § 20a, before it can become effective; but finding it to be reasonably conservative and to have received the approval of all the interested parties except certain stockholders and certain unsecured creditors, he overruled all exceptions thereto. No appeal from this ruling has been taken. Allocation of New Securities. The allocation of the new securities to the secured creditors of the insolvent corporation presents a more difficult problem. In general the modified plan provides for the distribution of new securities and cash among eight underlying bond issues, three general mortgage issues, two collateral trust issues and four leased line issues, that is, seventeen issues in all. During the course of the receivership two of the underlying mortgage issues, one of the general mortgage issues and one of the leased line mortgage issues, have been excluded from participation in the distribution and certain receivers’ certificates and other obligations have been paid off so that the total claims, principal and interest as of January 1, 1944, to which securities or cash are allocated under the plan, were reduced to the sum of $284,511,000, not including $11,870,000 of equipment obligations to be assumed by the new company. It is obvious that the new capitalization of $196,-870,000, including the $11,870,000 of equipment obligations, even if worth its -face value, .is insufficient to pay the secured creditors in full. It is not reasonable, however, to suppose that the new securities will be worth par; and it has been assumed by the master and this court, for comparative purposes, in fixing the relative 'values of the new securities, that the first mortgage bonds will' be worth par, the income mortgage bonds $500, the preferred stock $25 a share and the common stock $12.50 a share. A principal difficulty consists in the apportionment of the securities among the holders of first liens on separate divisions of a railroad system which includes wholly owned mileage, leased lines and independently operated mileage. An apportionment is necessary because the value of the first lien in any case depends upon the value of the property upon which it is based; and the difficulty is especially acute in the case of certain divisions which during the test period made no net earnings but only deficits in operation when considered independently. The Secondary Allocation. The complexity of the calculation is increased by the fact that the master first made a primary allocation on the assumption that the total issue of first mortgage bonds would be $40,000,000 and that of the income mortgage bonds $45,000,000; and then made a more conservative allocation on the assumption, which was finally adopted, that the total issue of first mortgage bonds should be reduced to $32,500,000 and the total issue of income mortgage bonds should be increased to $52,500,000. A secondary allocation was also necessary because after the first proposed capitalization had been generally accepted, it became clear that due to the heavy increase in the revenues of the system a substantial part of the funds in the hands of the receivers could be used in the retirement or acquisition of certain outstanding obligations; and in consequence the court directed the receivers to acquire certain receivers’ certificates in the hands of the public so that the principal amount thereof outstanding as of March 1, 1943 was reduced to the sum of $12,841,600. There were also purchases of two issues of underlying first mortgage bonds, bonds of one of the leased lines and the acquisition of certain collateral pledged for loans. The purchased securities were not canceled but held for the benefit of the remaining Seaboard security holders. These circumstances necessitated the reallocation of securities previously allotted to the holders of the purchased securities. Principles of the Plan. The amount of new securities allotted to any division was made to depend upon the relative value of the divisional property considered as a separate entity; and this value was determined principally by the earnings of the division calculated by a method which gives rise to an important controversial question that will be discussed hereafter. After the value of the division is ascertained in relation to the value of the whole system an equal proportionate amount of the new securities at their estimated market value is allocated thereto to be distributed: (1) To the holders of the first lien thereon to the extent of the principal and interest of their claims; and (2) the excess is awarded to the holders of the second and subsidiary lines in their respective order. In this way the principle of priority to which first liens are entitled was observed; and no objection on -this point is made. While the master gave predominant weight to the respective earning capacities, of the several divisions, he did not disregard other criteria. He took into consideration the net value to the system of the freight contributions made by each of the divisions; and also the reproduction cost new thereof less depreciation. He also gave heed to certain “severance studies” whose purpose was to estimate the effect upon a division of the system and upon the-system as a whole that would flow from the severance of the division from the system. These studies, however, were not made upon the Georgia and Alabama line and the South Bound line because the evidence showed that these lines would be without substantial value in case of severance from, the system. By adopting these principles of capitalization and allocation the master acted in accord with the decision of the Supreme Court in Group of Investors v. Chicago, Milwaukee, St. P. & P. R. Co., 318 U.S. 523, 540, 63 S.Ct. 727, 738, 87 L.Ed. 959, where it is said: “ * * * a basic requirement of any reorganization is the determination of a capitalization which makes it possible not only to respect the priorities of the various classes of claimants but also to give the new company a reasonable prospect for survival. See Commissioner Eastman dissenting, Chicago, M. & St. P. Reorganization, 131 I.C.C. 673, 705. Only ‘Meticulous regard for earning capacity’ (Consolidated Rock Products Co. v. DuBois, supra, 312 U.S. 510, 525, 61 S.Ct. 675, 685, 85 L.Ed. 982) can afford the old security holders protection against a dilution of their priorities and can give the new company some safeguards against the scourge of over-capitalization. Disregard of that method of valuation can only bring, as stated by Judge Evans for the court below, ‘a harvest of barren regrets.’ 124 F.2d [754], page 765, Certainly there is no constitutional reason why earning power may not be utilized as the criterion for determining value for reorganization purposes. And it is our view that Congress when it passed § 77 [11 U.S.C.A. § 205] made earning power the primary criterion. The limited extent to which § 77, sub. e, provides that reproduction cost, original cost, and actual investment may be considered indicates that (apart from doubts concerning constitutional power to disregard them) such other valuations were not' deemed relevant under § 77 any more than under § 77B, 11 U.S.C.A. § 207, ‘except as they may indirectly bear on earning capacity.’ Consolidated Rock Products Co. v. DuBois, supra, 312 U.S. page 526, 61 S.Ct. [675], 85 L.Ed. 982. In this case the Commission followed the statute. While it made earning power the primary criterion, it did not disregard the other valuations. It considered them and concluded in substance that they afforded no reasonable basis for believing that the probable earning power of the road was greater than what the Commission had found it to be by the use of other standards. The Commission need not do more.” While earnings do not furnish an exclusive test, they are recognized as a most important criterion in determining the values of the several divisions of a railroad system when it becomes necessary to apportion amongst them the new securities of a reorganized company. See the Milwaukee case, 318 U.S. 523, 540, 559, 63 S.Ct. 727, 87 L.Ed. 959; New York, N. H. & H. R. Co. Reorganization, 239 I.C.C. 337, 406, 407. It was therefore necessary to segregate the earnings of the mortgage divisions of the Seaboard system in accordance with some reasonable method. There is no fixed or inflexible rule for such a calculation when, as in this case, a railroad system has been operated as a whole and there has been no need to segregate the earnings of the several parts. The difficulties inherent in such a situation are aptly described in the Milwaukee case, 318 U.S. 523, 561 to 564, 63 S.Ct. 727, 747, 87 L.Ed. 959, where it is said: “The problem in such a case is not a simple one. The contribution which each division makes to a system is not a mere matter of arithmetical computation. It involves an appraisal of many factors and the exercise of an informed judgment. Furthermore, an attempt to put precise dollar values on separate divisions of one operating unit would be quite illusory. As the Commission recently stated, ‘The properties comprise one operating unit; a complete separation of values would necessarily have to be based on extensive assumptions of unprovable validity; and any attempt at such a separation would in the end serve no purpose except to present an apparent certainty in the formulation of the plan which does not exist in fact.’ St. Louis Southwestern Ry. Co. Reorganization, 252 I.C.C. 325, 361. In the present case the Commission and the District Court were satisfied that they had adequate data based on earning power to make a fair allocation of new securities between the General Mortgage bonds and the 50-year bonds. We cannot say that it was inadequate. Sec. 77 contains no formula for the making of such an allocation nor for the determination of the earning power of the entire system or parts thereof. The earnings periods to be chosen, the methods to be employed in allocating system earnings to the various divisions arc matters for the informed judgment of the Commission and the Court. * * * We are not dealing here merely with a first mortgage and a second mortgage on a single piece of property. For each of the two groups of bondholders has a first lien on a part of the Milwaukee properties. In case of first and second liens on the same property, senior lienors of course would be entitled to receive in case the junior lienors participated in the plan, not only ‘a face amount of inferior securities equal to the face amount of their claims’ but in addition, ‘compensation for the senior rights’ which they surrendered. Consolidated Rock Products Co. v. DuBois, supra, 312 U.S. 510, 529, 61 S. Ct. 675, 686, 85 L.Ed. 982. But where, as here, each group of bondholders is contributing to a new system mortgage separate properties from old divisional mortgages, it is necessary to fit each into the hierarchy of the new capital structure in such a way that each will retain in relation to the other the same position it formerly had in respect of assets and of earnings at various levels. If that is done, each has obtained new securities which are the equitable equivalent of its previous rights and the full priority rule of the Boyd case [Northern Pacific R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931], as applied to the rights of creditors inte se, is satisfied. * * * No fixed rule supplies the method for bringing two divisional mortgages into a new capital structure so that each will retain in relation to the othT er the same position it formerly had in respect of assets and of earnings at various levels. The question in each case is one for the informed discretion of the Commission and the District Court. We cannot say that that discretion has been abused here.” The master took the five year period, 1936 to 1940, for the test and he adopted, with certain modifications, what has come to be known in this case from the name of its author as the Kennedy Segregation Formula. It was devised by Miles C Kennedy, the expert employed to assist the Consolidated Committee. He suggested certain important modifications of a general formula which had been prepared by the receivers. The basic principle of the general formula is that freight revenues on traffic local to one line should be allocated thereto; but where the freight revenues are applicable to two or more lines, they are allocated thereto on a pro rata basis subject to an allowance of 10 per cent of the revenues from each shipment to the line originating, terminating or interchanging it. Passenger revenue local to one line is allocated thereto; and passenger revenue applicable to two or more lines is divided pro rata on a mileage basis. Operating expenses and other income debits and credits are allocated to the lines by which they are incurred. Routine expenses, such as wages and fuel, are apportioned pro rata on a mileage basis. A rental charge for system equipment at the rate of 3% per cent of its average annual depreciated book value is allocated to the several divisions. The Kennedy modifications of the general formula consist principally in adding a “constructive mileage block” to the actual mileage on the originating, terminating and interchanging lines and dividing the revenue of each shipment among the particular lines in proportion to the total mileages of the respective lines thus obtained. The mileage block was ascertained by finding the system cost of originating and terminating a car of freight or interchanging it with another road. The cost of originating and terminating a car of freight was found to be equal to the cost of hauling it a distance of 58 miles and the cost of interchanging a car was found to be equal to hauling it a distance of 16 miles. Under the Kennedy formula the revenue from the passenger traffic was apportioned on the basis of actual mileage that each passenger was hauled. The master departed from this method in the treatment of passenger losses which he apportioned to all of the lines of the system in the relation that the gross freight revenue of each line bore to the total freight revenue of the entire system. He calculated for each line the percentage which its loss from passenger operations bore to the total loss from passenger operations of the whole system and also the percentage which the revenue from freight operations on each line bore to the-total revenues from freight operations on, the entire system. If the percentage of the-revenue from freight operations was less, than the percentage of loss from passenger operations on any line, it wa's given, credit for this difference to compensate it for the excess loss from passenger operations; and, on the other hand, if the percentage of freight revenues was relatively-higher on the individual line it was charged with the difference in order to make its fair contribution to the total loss sustained from passenger operations. The Kennedy formula of segregated earnings was not the only basis used in the allotment of securities to the several lines. In the primary allocation the first mortgage bonds, other than those allotted on account of receivers’ indebtedness, investment securities and cash on deposit with the trustees, were allotted solely on the basis of earnings with certain adjustments; but the income mortgage bonds, other than those allotted on account of investment securities and a special allotment to the South Bound to be later discussed, were allocated one-half thereof on the basis of segregated earnings and one-half on the basis of the net value of freight contributions. Both preferred and common stocks, other than the allotment thereof on account of investment securities, were allocated one-third on the basis of segregated earnings, one-third on the basis of net contributions of freight traffic and one-third on the basis of the value of the property determined by the estimated cost of reproduction new less depreciation. It therefore appears that in making the allocation of new securities the special master recognized that the value of the particular line rests not only in the earnings it produces as a separate unit, but also in the contribution that it makes by originating, terminating and interchanging freight moving over the system as distinguished from local freight traffic. Effect was given to this contribution in the allocation of new securities by calculating the net freight contributions of the several lines and giving to each its proportionate share of the securities allocated on this basis. The amount of the net contributions was ascertained by determining the gross earnings which the system derived from traffic originating or terminating on the various mortgage divisions, including traffic interchanged by a mortgage division with a foreign line and determining the net value to the system of those contributions after deducting out-of-pocket expenses. Twice the weight was given to each dollar of freight contributions resulting from termination or origination as is given to contributions resulting from interchange. The master also recognized the element of value based on reproduction cost new less depreciation. This was ascertained in the case of each division from valuations furnished by the Interstate Commerce Commission; and each division was given its proportionate share of that portion of preferred and common stocks allocated on this basis as above set out. The secondary allocation was based solely on segregated earnings. It consisted of first mortgage bonds which had been allotted in the primary allocation to certain receivers’ certificates and bond issues subsequently acquired by the receivers. Since the deficit lines received no segregated earnings under the Kennedy formula, they did not share in the secondary allocation. The allocation of first mortgage bonds to earning lines exclusively finds support in the fact that the total annual fixed charges under the new capitalization are substantially the same as the average earnings of the Seaboard system during the test period 1936 to 1940. The master estimated that the total annual charges (including interest on the first mortgage) of the reorganized company prior to interest on the income mortgage bonds will be $3,696,000. The average gross income for the Seaboard system during the test period was $3,718,053, an amount sufficient to pay only the annual charges and interest of the senior securities of the reorganized line. There was no year after 1930 and before the war in which the earnings of the Seaboard system were sufficiently high to have permitted the payment of the full amount of the interest on the new income mortgage bonds. Consequently the junior securities of the new system could not be allocated entirely on the basis of segregated earnings and the master, as we have seen, also took into consideration other methods in allocating these securities. Tertiary Allocation. The allocations of the special master were the subject of critical examination in the extended hearings in the District Court and in the conferences between the several classes of secured creditors with the result that additional modifications of the plan were made by a reallocation of securities derived from several sources. Funds in the receivers’ hands were used to purchase receivers’ certificates to which first mortgage bonds had been allotted in the prior allocation; first mortgage bonds and junior securities allotted to certain underlying mortgage divisions were released, when their claims were otherwise satisfied; prior allocations as between underlying and general mortgages on the same division were rearranged in certain instances; and other securities were shifted ■ as, the result of a more equitable accounting with respect to deficits. The total securities in cash released by these changes approximated $15,-000,000. ' ' The allocation of this amount gave recognition .to an argument strongly urged upon the court and the Conference Committee and finally accepted, that since the deficit lines had becpme earning lines during the war years 1942 and 1943, they should share in the distribution of the accumulated funds in the receivers’ hands. It was therefore decided to make the tertiary allocation in accordance with a method suggested by Mr. Wyer, the expert of the underlying mortgage lines. First it was ascertained what amount would have been necessary to pay interest and dividends, including a dividend of $3.50 per share qn the common stock, on the total amount of securities allocated by. the special master) as if his plan had gone into' effect..on January 1, 1942. The percentage ,of this total to which each line would have.been entitled-upon the securities allocated to it was then ascertained, and the line was then given the same percentage of the securities, available for. the tertiary allocation. The result was that all the deficit lines shared in the allocation, and the allocations to the appellant deficit lines were materially increased. This final allocation, arrived at by the. modification of the. .special master’s report' recommended by :the Conference Committee and approved by the. court, embodies the labor of many persons for many months. It represents an adjustment of complex and conflicting claims that cannot. be worked out' in precise figures without certain assumptions that must be based on business adjustment rather'than upon mathematical certainty;. and it has received the approval of the experts employed by opposing interests as a, fair and business like solution that will do substantial .justice and.effectuate the reorganization without further un7 due delay. . ■ The Appellants’ Contentions. A preliminary procedural question fundamental to the case is raised by the appellants. It is said that upon the enactment of § 77 of the Bankruptcy Act in 1933, 11 U.S.C.A. § 205 which-provided for railroad reorganizations in bankruptcy, the Seaboard equity proceeding should have been dismissed and the reorganization of the railroad should have been conducted by the bankruptcy court. The purpose of .§ 77 to vest important functions in railroad reorganization in the Interstate Commerce Commission in cooperation with the bankruptcy court, as expounded in Ecker v. Western Pacific R. Corp., 318 U.S. 448, 63 S.Ct. 692, 87 L.Ed. 892, is stressed; and special reliance is placed on the decision in New England Coal & Coke Co. v. Rutland Ry. Co., 2 Cir., 143 F.2d 179. In the latter case the District Court had before it an equity receivership begun in 1938 after the enactment of § 77, and it denied a peti: tion of the Railroad Company for reorganization under the bankruptcy statute. The Court of appeals reversed. It said that before the enactment .of § 77 railroad reorganization in equity was approved be-; cause the Bankruptcy Act was not applicable to railroad corporations and reorganization in equity was necessary in the public interest; but after the enactment the reason vanished and equity reorganization is now merely, a means for the frustration of the public policy of the United States embodied in the statute. A petition for rehearing was filed, calling attention to the action of Judge Chesnut in approving the reorganization of the Seaboard in equity for the reasons expressed in his opinion in the pending Case at 53 F.Supp. 697, 700. The petition for rehearing also referred to subsection p of § 77 which expressly recognizes eql uity reorganization by making it unlawful for any person in a receivership in a state or federal court to solicit proxies from creditors without the prior approval of. the Interstate Commerce Commission; and to § 506 of the Revenue Act of 1942, 56 Stat. 798, 26 U.S.C.A. Int.Rev.Acts and § 1808 (e) of the Internal Revenue Code, 26 U.S. C.Á. Int.Rev.Code, § 1808(e) which exempted from stamp taxes any securities issued in the reorganization of a railroad in an equity proceeding. In overruling the petition for rehearing, the court pointed out that the Seaboard receivership had been begun in 1930, when railroad ' reorganizations in bankruptcy were impossible, so that there was no irregularity in the institution of the suit; and that the pendency of proceedings of this sort gave full scope to the cited statutory provisions which recognize equity receivership. Therefore, the court reiterated its holding that the passage of § 77 makes it improper for an equity court to entertain a suit for railroad reorganization and such a proceeding should be dismissed if the irregularity is called to the attention of the court by the filing of a petition under § 77 or otherwise. We have no occasion to go so far in the pending case. Neither the insolvent corporation nor creditors holding five per cent of Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_7-3-5	H	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". KANSAS-NEBRASKA NATURAL GAS COMPANY, Inc., a Kansas Corporation, Appellant, v. The CITY OF ST. EDWARD, NEBRASKA, a Municipal Corporation, et al., Appellees. KANSAS-NEBRASKA NATURAL GAS COMPANY, Inc., a Kansas Corporation, Appellant, v. The CENTRAL CITY, NEBRASKA, a Municipal Corporation, et al., Appellees. Nos. 15489, 15490. United States Court of Appeals Eighth Circuit. June 14, 1956. James D. Conway, Hastings, Neb., and Frank D. Williams, Lincoln, Neb. (Elmer-J. Jackson, Hastings, Neb., and' Douglas Gleason, Ottawa, Kan., on the brief), for appellant. Earl Hasselbalch, St. Edward, Neb. (Charles H. Phares and Donald F. Sampson, Central City, Neb., on the brief), for appellees City of St. Edward, Neb. et al. Donald F. Sampson, Central City, Neb. (Charles H. Phares, Central City, Neb., and Earl Hasselbalch, St. Edward, Neb., on the brief), for appellees Central City, Neb. et al. Before GARDNER, Chief Judge, and JOHNSEN and VAN OOSTERHOUT, Circuit Judges. GARDNER, Chief Judge. These were equitable actions brought by appellant against appellees seeking to enjoin appellees from preventing appellant from putting into effect new rates for natural gas distributed and sold to inhabitants of said cities. The mayor and councilmen of the respective cities were also joined as parties defendant. Both the named cities are Nebraska cities of the second class. The actions were consolidated for purposes of trial and for purposes of appeal and they are presented here on a single record. In the course of this opinion we shall refer to the parties as they were designated in the trial court. Plaintiff, at all times pertinent, was and now is a corporation organized and existing under the laws of the State of Kansas and during all such times was engaged in the purchase, production, transmission, distribution and sale, both at wholesale and retail, of natural gas within the States of Kansas, Colorado and Nebraska. Its principal supply of natural gas is obtained from the Hugo-ton Natural Gas field located largely in southwestern Kansas, but extending into Oklahoma and Texas. It also secures some, though a comparatively small portion, of its gas in northeastern Colorado and southwestern Nebraska. It both produces natural gas and acquires it by purchase. The plaintiff owns and operates a coordinated natural gas gathering, transmission, and distribution system whereby natural gas produced or purchased by it is transmitted from the point of its acquisition, through pipe lines, to the points of its final disposition and sale. This system extends from its natural gas sources in Kansas northerly into Nebraska and is connected with like elements of it originating at acquisition points in Colorado and Nebraska, with the consequence that natural gas from the three states is commingled for transmission to, and sale within, any of them; and from all of such states plaintiff collects, transmits and distributes natural gas for sale both at wholesale and at retail within the state of Nebraska. At all times here pertinent it sold the gas to the inhabitants of municipalities in the state of Nebraska including the inhabitants of defendant cities. Plaintiff was granted a franchise by each of the defendant cities. Defendant Central City first passed an ordinance February 11, 1946, granting plaintiff a franchise for a period of twenty-five years to construct and maintain within the City of Central City a natural gas distribution system and to engage in the sale of natural gas to the inhabitants thereof. By ordinance passed October 13, 1947, Central City amended the pri- or ordinance to establish a lower schedule of rates. On October 2, 1950, defendant City of St. Edward passed a similar franchise ordinance. Each of these ordinances fixed a maximum rate which might be charged for the term of the franchise. As grounds for in junctional relief plaintiff alleged that the rates established for gas customers in each of the franchise ordinances granted by defendant cities failed to give plaintiff a fair and reasonable return on its invested capital required for the service of gas customers in defendant cities; that prior to commencement of the actions plaintiff had submitted to each of the defendant cities a request for an increase in rates to provide it with sufficient revenue to earn it a fair and reasonable return on its invested capital required for the service of the gas customers in defendant cities and that said requests were supported by detailed information concerning plaintiff’s business, showing the necessity for the increase requested in such rates; thát each of the defendant cities failed and refused, though requested so to do, to establish for plaintiff a new rate schedule which would provide a reasonable return on its invested capital; that in so refusing the reasonable request of the plaintiff to establish a new rate schedule defendants acted in a confiscatory manner, thus depriving plaintiff of its property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of Article I, Section 3, of the Constitution of Nebraska; that the rates which plaintiff asked defendant cities to establish are necessary to provide plaintiff with a fair and reasonable return on its invested capital; and that for the injury complained of and threatened plaintiff has no adequate remedy at law. Based upon these allegations plaintiff asked for injunction enjoining defendants from preventing it from putting the requested rates into effect and collecting same. Each of the defendants interposed a motion to dismiss the actions on the grounds, among others, that: “ * * * said complaint, as amended, fails to state a claim upon which relief can be granted to the plaintiff. “ * * * this Court lacks jurisdiction over the subject matter of this action for the reason that this is an action falling within the provir sions of Sec. 1342, Title 28, U.S.C.A. * * * »> The court did not pass upon these motions as filed nor on the motions for preliminary injunctions, expressing the view that disposition of the motions should be deferred until final trial. D.C., 135 F.Supp. 629. Each defendant answered, in effect pleading that the franchise ordinance establishing the maximum rates was passed and adopted by the defendant cities at the request and solicitation of the plaintiff and that the ordinance constitutes a valid and binding contract based on mutual and valuable considerations and that the plaintiff is estopped from denying the validity of such franchise contract or the rates prescribed therein and is estopped from claiming or asserting that it has been deprived of its property without due process of law. On trial of the issues joined the court found that the rates established by the city ordinances in question .were confiscatory but that they were established by contract induced by plaintiff for a valuable consideration and that plaintiff was estopped from denying the validity of the franchise contracts. The court also held that such rates only indirectly and incidentally affected interstate commerce but did not interfere with interstate commerce. The court also concluded that Section 1342, Title 28 U.S.C.A., referred to in the record as the Johnson Act, prohibited any relief by way of injunction. Based on the findings of fact and conclusions of law thus made and entered the court entered judgments dismissing the actions on their merits as well as for lack of jurisdiction. The judgments do not on their face show that the actions were dismissed for lack of jurisdiction but this may be inferred from the court’s memorandum opinion. D.C., 134 F.Supp. 809. It was contended by the plaintiff below, and it renews the same contentions here, that: (1) in the event the Johnson Act applies to the actions instituted by plaintiff the trial court was without jurisdiction to dispose of said actions on their merits so as to foreclose plaintiff from seeking relief in the Nebraska state courts; (2) the distribution and sale of natural gas in the defendant cities by plaintiff under the facts stated above constitutes interstate commerce; (3) the refusal of defendants to grant plaintiff relief from a confiscatory rate is an interference with interstate commerce which is excepted from the prohibition of the Johnson Act; (4) cities of the second class in Nebraska were, by Section 17-125, R.S.N.1943 (Reissue 1954), given jurisdiction to regulate rates for the distribution of natural gas and defendants retained such power in Section 4 of the franchise ordinances and their refusal to approve the proposed rates takes plaintiff’s property without due process of law. As has been observed, the jurisdiction of the Federal Court to hear and determine these actions was challenged by defendants’ motions to dismiss for want of jurisdiction and this contention was urged throughout the trial and is here renewed by the defendants. Lack of jurisdiction in a Federal Court over the subject matter of litigation is always open for consideration as jurisdiction over the subject matter cannot be conferred by waiver of the parties and when such lack of jurisdiction is brought to the attention of the trial court it should decline jurisdiction even though the question be not urged by either party to the litigation. United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263; Kern v. Standard Oil Co., 8 Cir., 228 F.2d 699, 701; Mulligan v. Federal Land Bank of Omaha, 8 Cir., 129 F.2d 438; Rule 12(h), Federal Rules of Civil Procedure, 28 U.S.C.A. The question was considered by us in Kern v. Standard Oil Co., supra, decision in which was handed down after the trial of these actions, and in the course of the opinion we said: “Rule 12(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides ‘that, whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.’ “Lack of jurisdiction of a federal trial court touching the subject matter of litigation cannot be waived by the parties or ignored by a federal appellate court, Chicago, Burlington & Quincy Railway Co. v. Willard, supra, at pages 419-421 of 220 U.S. [413], at pages 461-462 of 31 S.Ct. [460, 55 L.Ed. 521], and if jurisdiction does not exist the trial court must of its own motion decline to proceed in the case. United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263. If a federal district court tries a case with respect to which jurisdiction is lacking, the jurisdiction of the appellate court, on review, extends only to correcting the error of the trial court in entertaining the action. United States v. Corrick, supra, at page 440 of 298 U.S., at page 831 of 56 S.Ct. A federal appellate court, in a case under review, must satisfy itself not only of its own jurisdiction, but also of that of the district court. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338; Illinois Terminal R. Co. v. Friedman, supra [8 Cir.], 208 F. 2d 675, 676.” We must therefore first determine whether or not the trial court had jurisdiction over the subject matter of these actions. Section 1342, Title 28 U.S.C.A., provides as follows: “The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where: “(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, “(2) The order does not interfere with interstate commerce; and, “(3) The order has been made after reasonable notice and hearing; and, “(4) A plain, speedy and efficient remedy may be had in the courts of such State.” Section 717, Title 15 U.S.C.A., referred to in the record as the Natural Gas Act, provides in part as follows: “The provisions of this chapter shall apply to the * * * sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural-gas companies engaged in such * * * sale, but shall not apply to any other * * * sale of natural gas or to the local distribution of natural gas.” In the instant case jurisdiction is dependent upon diversity of citizenship and the alleged repugnance of the franchise ordinances to the Federal Constitution. The sales of gas by the plaintiff are made direct to the consumers who áre the inhabitants of the defendant cities, and the defendant cities, when they passed the franchise ordinances, were authorized rate-making bodies. There seems no doubt that -the plaintiff can have “a plain, speedy and efficient remedy” in the state courts. But it is claimed that the inadequate rate provided by the ordinances constituted an interference with interstate commerce. Conceding, without deciding, that the rates are confiscatory and, hence, deprive plaintiff of its property without due process of law, it does not necessarily follow that Congress has conferred jurisdiction on the Federal Courts to determine these issues. Doubtless Congress could have occupied the entire field regulating this interstate transportation and sale of natural gas, but confessedly it was.not required so to do and by the Natural Gas Act it clearly exempted “local distribution of natural gas” from the provisions of the Act, leaving the regulation of local distribution and sale of natural gas to state supervision and control. Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, 341 U.S. 329, 71 S.Ct. 777, 95 L.Ed. 993; United States v. Public Utilities Commission of California, 345 U.S. 295, 73 S.Ct. 706, 97 L. Ed. 1020; Illinois Natural Gas Co. v. Central Illinois Public Service Co., 314 U.S. 498, 62 S.Ct. 384, 86 L.Ed. 371; General Telephone Company of Southwest v. Robinson, D.C.Ark., 132 F.Supp. 39. The teaching of the decision in Panhandle Eastern Pipe Line Co. v. Michigan Public Service Commission, supra [341 U.S. 329, 71 S.Ct. 780], is, we think, determinative of the jurisdictional issue'ifi this case. In -the course of the opinion in that cáse it is said: “By this Act Congress occupied only a part of the field. As to sales, only the sale of gas in interstate' commerce for resale was covered. Direct sales for consumptive use were designedly left to state regulation. Panhandle-Indiana, 332 U.S. at pages 516-518, 68 S.Ct. at pages 194, 196, 92 L.Ed. 128. Speaking-further of the division of regulatory authority over interstate commerce in natural gas, this Court said in the same case: “ ‘It would be an exceedingly incongruous result if a statute so motivated, designed and shaped to bring about more effective regulation, and particularly more effective state regulation, were construed in the teeth of those objects, and the import of its wording as well, to cut down regulatory power and to do so in a manner making the states less capable of regulation than before the statute’s adoption. Yet this, in effect, is what appellant asks us to do. For the essence of its position, apart from standing directly on the commerce clause, is that Congress by enacting the Natural Gas Act has “occupied the field,” i. e., the entire field open to federal regulation, and thus has relieved its direct industrial sales of any subordination to state control. “ ‘The exact opposite is the fact. Congress, it is true, occupied a field. But it was meticulous to take in only territory which this Court had held the states could not reach. That area did not include direct consumer sales, whether for industrial or other uses. Those sales had been regulated by the states and the regulastion had been repeatedly sustained. In no instance reaching this Court had it been stricken down.’ ” (Emphasis supplied.) The doctrine of the above case is, in effect, reiterated in United States v. Public Utilities Commission of California, supra, where among other things the court said [345 U.S. 295, 73 S.Ct. 711]: “ * * * the jurisdictional lines between local and national authority were not finally determined until this Court’s opinion in Public Utilities Comm. v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549. * * * Attle-boro reiterated and accepted the holding of Pennsylvania Gas Co. v. Public Service Comm., 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434, that sales across the state line direct to consumers is a local matter within the authority of the agency of the importing state.” We think it is clear, as stated in Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 768, 95 L.Ed. 1002, that whatever rights plaintiff may have "are to be pursued through the state courts.” As has been observed, the court dismissed the actions on their merits and for want of jurisdiction. Possibly the court had in mind that if in error as to the lack of jurisdiction it would not be necessary to remand the cases for further proceedings, and for that reason proceeded to determine the merits of the actions. As we are of the view that the court lacked jurisdiction its decision on the merits of the issues should not be permitted to stand, as these issues are triable in the state court. Having reached the decision that the trial court, because a Federal Court, was without jurisdiction of the subject matter of these actions we pretermit consideration of the other issues discussed in the briefs of counsel for the respective parties. The cases are therefore remanded to the trial court with directions to vacate and set aside its findings, conclusions and judgments and to enter in lieu thereof judgments dismissing the actions for lack of jurisdiction. 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:
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). Daniel K. MAYERS et al., Appellants v. Peter S. RIDLEY et al. No. 71-1418. United States Court of Appeals, District of Columbia Circuit. Reconsidered March 1, 1972. Decided June 30, 1972. Mr. Michael J. Waggoner, Washington, D. C., with whom Messrs. Jack B. Owens and Ralph J. Temple, Washington, D. C., were on the brief, for appellants. Mr. Ted. D. Kuemmerling, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellees. On Reconsideration En Banc Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKIN-NON, ROBB and WILKEY, Circuit Judges, en banc. PER CURIAM: Appellants, a group of District of Columbia residents representing the class of homeowners whose property is burdened by racial covenants, instituted this suit to enjoin the Recorder of Deeds from accepting such covenants for filing in the future and to require the Recorder to affix a sticker on each existing liber volume stating that restrictive covenants found therein are null and void. They also asked for an injunction preventing the Recorder from providing copies of instruments on file unless a similar notice is attached to the copies. The District Court dismissed their complaint, 330 F.Supp. 447 (1971), and a three-judge panel of this court affirmed that judgment. On reconsideration en banc of the judgment of the District Court we now reverse. Reversed and remanded. 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_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. UNITED STATES of America, Plaintiff-Appellant, v. ONE 1974 CADILLAC ELDORADO SEDAN, SERIAL No. 6L47S4Q407966, Defendant-Appellee. No. 68, Docket 76-6063. United States Court of Appeals, Second Circuit. Argued Nov. 18, 1976. Decided Jan. 13, 1977. Peter C. Salerno, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., Samuel J. Wilson, Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellant. Michael P. Direnzo, New York City, for defendant-appellee. Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges. MULLIGAN, Circuit Judge: On October 15, 1974, the United States brought an action pursuant to 21 U.S.C. § 881 for the forfeiture of a 1974 Cadillac Eldorado Sedan registered in the name of Ivan Santiago. The Government sought forfeiture of the vehicle on the ground that it had been used to facilitate the sale of cocaine within the meaning of 21 U.S.C. § 881(a)(4). After a one-day bench trial before the Honorable Edward Weinfeld, United States District Court for the Southern District of New York, the court dismissed the complaint and denied forfeiture by order and judgment entered March 4, 1976. Judge Weinfeld’s opinion, filed on , December 30, 1975, is reported at 407 F.Supp. 1115. The Government has appealed. The only evidence given below for the Government was the testimony of Joseph P. Salvemini, an undercover agent of the Drug Enforcement Administration, and two exhibits. The claimant Santiago testified on his own behalf. The Government does not contend that any of the findings of fact below are erroneous. I At about 1:30 p.m. on June 6, 1974, Salvemini and an informant went to the apartment of Arlene Carlton at 305 East 24th Street in Manhattan. They were there introduced to one “Pete” Montanez and discussed the purchase of cocaine. Montanez stated that he and his cousin Ivan (Santiago) had brought 15 kilos of cocaine from South America and had 3 kilos left. Montanez told Salvemini that he could only sell him an eighth of a kilogram. Salvemini protested that this was not enough and after a heated exchange Montanez left. On the following day, June 7, Salvemini’s informant advised him that another meeting had been scheduled at Carlton’s apartment. Ivan Santiago, accompanied by Montanez, drove the Cadillac from his ladies’ apparel shop on East 167th Street in the Bronx to Carlton’s apartment in Manhattan where they met with Salvemini. Santiago stated that he was there to straighten out the prior disagreement and was willing to sell Salvemini one kilogram of cocaine for $26,-000. They disagreed however as to the method of transferring the drugs. According to Salvemini, Santiago claimed to have been a dealer in cocaine for six years and preferred the exchange to be made indoors in Carlton’s apartment, while Salvemini wished to use two rented cars. Salvemini testified that the price and the amount of cocaine to be sold were agreed upon at this meeting, and that their only difference at that point was the mechanics of the exchange. Santiago testified that at the end of the June 7 meeting, he told Salvemini to forget about it and that no agreement was reached. Judge Weinfeld did not comment in his opinion on these separate versions of the June 7 meeting but did find that the meeting ended inconclusively and that the participants failed to agree on the mechanics of the transaction. Santiago and Montanez, after leaving the Carlton apartment, drove away in the Cadillac now sought to be forfeited. Three days later on June 10, 1974, Montanez met Salvemini at a New York restaurant where negotiations continued. Salvemini testified that Montanez stated that he and his cousin Ivan (Santiago) were adamant that the sale take place indoors. Salvemini then agreed to purchase an eighth of a kilogram of cocaine. The transaction took place that evening in the Carlton apartment, Salvemini paying Montanez $4,000 for the cocaine. By arrangement Salvemini and Montanez met the following day and agreed to the further sale of a kilogram of cocaine later that day. Before the transaction was consummated, however, Santiago and Montanez were both arrested. The apartment of Santiago was searched on June 12 pursuant to a search warrant and quantities of cocaine and marihuana were seized, as well as narcotics equipment, plus some $26,629 in currency including $2,500 in $Í00 bills representing official advance funds. Later that day Santiago’s Cadillac was seized. After Santiago’s arrest, he was indicted and then pleaded guilty to conspiring with Montanez and Carlton to distribute cocaine in violation of 21 U.S.C. § 846. One of the overt acts charged in the indictment was the June 7 conversation in the Carlton apartment. Other overt acts charged were the purchase and sale of the one-eighth kilogram on June 10, 1974 by Montanez. Concededly the only use of the Cadillac Eldorado Sedan sought to be forfeited here was to transport Santiago and “Pete” Montanez to and from the Carlton apartment on June 7, 1974. II Section^881(a)(4) provides that the property subject to forfeiture includes “All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2).” Paragraph 1 identifies a controlled substance as such property and there is no dispute that cocaine is such a substance.' The Government specifically relies on that part of the statute which provides that if the vehicle is used “in any manner to facilitate the . . . sale” of the controlled substance, it is subject to forfeiture. It is urged that the use of the Cadillac to bring Santiago and Montanez to the June 7 prearranged “business” meeting was a significant event in furtherance of Santiago’s illegal activities which culminated in the illicit sale, thus justifying the forfeiture of the vehicle. Judge Weinfeld’s opinion held that since the contraband was not transported by the vehicle and the car was used as an ordinary means of transportation to convey Santiago to the site of the June 7 meeting, there was no sufficient basis for forfeiture. The court held that the vehicle must have a substantial connection to, or be instrumental in the commission of, the underlying crime. He found that the Cadillac here involved had no relationship, direct or indirect, to the subsequent narcotic transactions which transpired a few days later. He placed principal reliance on United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.N.H.1974) which is the most recent case discussing the issue at length. There is no opinion of our circuit court in point. Although appellee has not favored us with a brief, the cases in point are not numerous and are discussed to a considerable extent in the Datsun opinion. We cannot agree with the district court that the use of Santiago’s Cadillac had no direct or indirect relationship to the subsequent sales. The June 7 meeting may have terminated inconclusively because of a disagreement as to the mechanics of the exchange, but it was an integral part of the drug selling conspiracy to which Santiago pleaded guilty and was pleaded in the indictment as an overt act. Salvemini did testify that the price and quantity of the drug were fixed at that meeting. It was the second meeting of Montanez and Salvemini and was prearranged as a result of the abortive meeting the day before. Santiago admittedly knew that the purpose of the meeting was to arrange for the sale of cocaine. That sale was consummated a few days later in the manner insisted upon by Santiago — an exchange in the apartment of Carlton. Santiago further admitted in the proceeding below that he had given the cocaine to Montanez which was sold to Salvemini on June 10, again an overt act pleaded in the indictment. The question is whether there was a sufficient nexus between the use of the Cadillac to bring Salvemini and Santiago to and from the June 7 meeting to amount to a facilitation in any manner of the later sale of the controlled substance within the meaning of section 881(a)(4). United States v. One 1972 Datsun, supra, relied upon by the district court, involved the construction of the same subdivision of the statute on facts which appear to be stronger for the Government’s case than those before us. That court nonetheless found them insufficient to justify the forfeiture of the vehicle. In that case Stoudt, the owner of the vehicle in question, on two occasions by prearrangement used his car to lead a special agent of the Drug Enforcement Administration (who followed in his own car) to Stoudt’s apartment where sales of LSD were transacted. The court in its review of the case law found that this forfeiture statute and others similar to it had been limited to cases where a) the contraband, no matter how minute in quantity, was intentionally transported or concealed in the vehicle; b) where the vehicle was used as a place for conducting negotiations for or transacting any portion of a sale; or c) where the vehicle is used as a lookout or decoy vehicle in a convoy. The court noted that, courts, with the exception of United States v. One 1941 Pontiac, 83 F.Supp. 999 (S.D.N.Y.1948), had been reluctant to expand the notion of “facilitation” beyond these categories. 378 F.Supp. at 1202-03 and n.6. From these cases, the court derived the rule followed below that “to. be forfeited, a vehicle must have some substantial connection to, or be instrumental in the commission of, the underlying activity which the statute seeks to prevent.” Id. at 1205. We cannot agree, in light of the language and intent of section 881(a)(4), that the statute should be so narrowly construed as to limit its application to the three categories set forth in Datsun. The Datsun court, and Judge Weinfeld here, depend upon Simpson v. United States, 272 F.2d 229 (9th Cir. 1959), which in turn relied upon United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622 (1953), for the proposition that the mere fact that a car is used by a law violator for his personal convenience in transporting him to the site of the illicit operation does not establish a basis for forfeiture. Neither case however involved a construction of section 881(a)(4) which is here in issue. Simpson involved a forfeiture under 26 U.S.C. § 7302 which provides for the seizure of “any property intended for use in violating the provisions of the internal revenue laws.” The comparatively narrow scope of such statutes is clear from Lane, supra, 344 U.S. at 631, 73 S.Ct. at 460, where the Supreme Court, construing similar language in section 3116 of the 1939 Internal Revenue Code, held, “We think it clear that a vehicle used solely for commuting to an illegal distillery is not used in violating the revenue laws.” (Emphasis in original). Section 881(a)(4) does not use the broad term property but specifically refers to vehicles and more pointedly, does not limit its application to the use of the vehicle in violating the narcotic laws but allows forfeiture where the vehicle is “used, or [is] intended for use ... in any manner to facilitate the . . . sale” of a controlled substance. We cannot find these cases construing more restrictive statutes authoritative here. The issue cannot be resolved by the simple expedient of characterizing Santiago as a commuter or the user of a vehicle for personal convenience. We also note that the Datsun opinion extensively cited and depended upon United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), as representing a trend of amelioration in forfeiture law and as holding that “property shall be seized only if its owner significantly participated in the criminal enterprise.” 378 F.Supp. at 1204, quoting 401 U.S. at 719, 91 S.Ct. at 1044. However in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974), Mr. Justice Brennan writing the opinion for the Court stated: “Coin & Currency did not overrule prior decisions that sustained application to innocents of forfeiture statutes, like the Puerto Rican statutes, not limited in application to persons ‘significantly involved in a criminal enterprise.’ ” The Puerto Rican statute there involved, P.R.Laws, Ann. tit. 24, § 2512, was modeled on section 881 and its facilitation language tracks precisely the language of the statute here involved. The claimant in Caiero-Toledo was a lessor of a yacht who was unaware of the fact that his lessee was about to use it to transport marihuana. The Court nonetheless declared it properly seized and forfeited, noting that the appellee had not alleged or proved that it “did all that it reasonably could to avoid having its property put to an unlawful use.” Id. at 690, 94 S.Ct. at 2095. This opinion therefore is hardly indicative of a trend of mollification even in circumstances where the owner of the forfeited vehicle is actually ignorant, albeit not invincibly so, of the use to which it has been put. Santiago, hardly a babe in the woods, was on the record before us a hardbitten and veteran trafficker in drugs who was not driving his Cadillac to the Carlton apartment to make a social call and exchange pleasantries with Salvemini. j The severe attitude of the Caiero-Toledo Court is explained by its reference to the legislative history of 49 U.S.C. § 781, which illustrates congressional concern with rising drug trafficking in this country and its conviction that those who profit and thrive upon the misery of drug addicts should be punished financially by forfeiture of the vehicles employed in the trade. The Government is also compensated in part for its enforcement efforts, which are substantial, and obtains security for subsequently imposed penalties and fines. ■ Id. at 687 n.26, 94 S.Ct. at 2094 n.26.. There is therefore reason to give the forfeiture provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 broader coverage than those of other statutes depended upon in Datsun and the district court here. It is interesting to note that 49 U.S.C. § 781(a)(3), the statute construed in the vast majority of the cases reported on this point in conjunction with the general forfeiture provision of the United States Code Chapter on Transportation, 49 U.S.C. § 782, provides for the forfeiture of any vehicle used or intended to be used “to facilitate the transportation . . . [or] sale . of any contraband article.” However, when the Congress enacted section 881 as part of the 1970 Act it provided for the forfeiture of vehicles used or intended to be used “in any manner to facilitate the transportation . . . [or] sale” of a controlled substance. Although we have found no legislative history to explain the addition of the language which we have underscored, its employment in a statute specifically addressed to the problem of drug abuse patently indicates the congressional intent to broaden the applicability of the forfeiture remedy it provided. Hence the rule proclaimed by Datsun, based upon other statutes as well as section 781, is perforce suspect. While this circuit has not written on this point before, our attention has been called to opinions of two other circuits which are seemingly contrary to the result reached here. Howard v. United States, 423 F.2d 1102 (9th Cir. 1970), involved the seizure of a car used to transport the defendant to the scene of a drug transaction when the seizing officers had no cause to believe it contained contraband. The court found the forfeiture of the vehicle inappropriate. We note, however, that the court was construing section 781 and not its broadened counterpart section 881. Moreover, the Government proceeded on the theory that the vehicle facilitated the “transportation” of the drug and not, as here, its sale. Howard relied on Platt v. United States, 163 F.2d 165 (10th Cir. 1947) for the proposition that “The use of an automobile to commute to the scene of a crime does not justify the seizure of that automobile under sections 781 and 782.” 423 F.2d at 1104. In Platt, the claimant of the vehicle was the mother of a drug addict who borrowed the vehicle from her parent to drive to a drug store to obtain morphine with a forged prescription. She was arrested as she left the store. Aside from the fact that the opinion indicates the mother’s lack of awareness of the nature of her daughter’s use of the car, the case again was based upon a forfeiture under section 781. We consider neither case therefore persuasive here. As a matter of common sense we cannot accept the concept that while the transportation of apy quantity of drugs however minute is admittedly sufficient to merit the forfeiture of the vehicle, nonetheless the transportation of the trafficker to the site of the drug sale or to a prearranged meeting with a prospective customer where the sale is proposed should save the vehicle from forfeiture. In either event is should be caput lupinum. It is well understood that extremely small amounts of narcotics are worth considerable sums. (Here for example one-eighth of a kilo of cocaine given to Montanez by Santiago, was sold to the Government agent for $4,000). The drug is physically small enough to be carried on the person of the peddler in his pocket or even his hat band. The vehicle is employed not as a moving van to cart bulky contraband, but realistically to facilitate the transportation of the person who deals in it. The nabobs of the drug business normally eschew physical custody of dope, relegating to their minions possession of the brown paper bag (here we note that while Santiago drove a Cadillac, his cousin Montanez drove a Toyota). If the purpose of the statute is, as Congress indicated, to reduce the profits of those who practice this nefarious profession, we are loathe to make the forfeiture depend upon the accident of whether dope is physically present in the vehicle. Its use to transport the peddler or his confederates to the scene of the sale or to a meeting where the sale is proposed is sufficient. In prior cases decided under the more restrictive section 781, decisions of the Southern District have not hesitated to approve forfeitures where the vehicle was not used to transport or conceal contraband or as a place to negotiate or consummate a sale of drugs, but rather as a conveyance of the trafficker. In United States v. One 1941 Pontiac Sedan, supra, 83 F.Supp. 999, the vehicle was utilized by one Ardito to drive to a bar where he agreed to sell narcotics to a government informer. The next day he drove the car to a location where the transaction was to take place. A third party was observed carrying the conventional brown paper bag. When the informer advised Ardito that he did not have the money to make the purchase, Ardito waved away the bag carrier. Ardito was observed in the car with a confederate on one occasion and both were seen near it several times. In sustaining the forfeiture of the Pontiac Judge Leibell observed, id. at 1001: If an automobile is used by a drug peddler as a “means” of going to places to negotiate sales of narcotics and as a means of driving therefrom, to later on have the orders filled, and as a means for the joint transportation of himself and a confederate, who makes the delivery of the narcotics for the peddler, the automobile is in my opinion being used to facilitate the sale of narcotics, even though narcotics are not actually carried in the ear. In an earlier case, United States v. One Dodge Coupe, 43 F.Supp. 60 (S.D.N.Y.1942), one Granza had driven his Dodge to a location in Manhattan where a Pontiac was parked. Granza entered the Pontiac, drove around the block, and then left it carrying a bag (color not disclosed) which it was subsequently established contained heroin. As a narcotic agent approached, Granza threw the bag back into the Pontiac. Although the claimant was a conditional vendor and the vehicle seized never was shown to have transported the drug, Judge Rif kind construing section 781(a)(3) found that the Dodge facilitated the transportation of the heroin because it brought Granza part of the distance over which the contraband would otherwise have had to travel in order to reach him, thus rendering his task less difficult and laborious. This answer he observed was in part prompted “by the inescapable inference which must be drawn from the fact that the meeting of the Dodge and the Pontiac was not accidental but prearranged. In other words the Dodge was an instrumentality in a prearranged scheme of transportation which was not completed by reason of the intervention of the narcotic agents.” Id. at 62. Both of these earlier Southern District decisions in substance support the position of the United States on this appeal, particularly since as we have noted we now are dealing with section 881(a)(4) which permits forfeiture if the vehicle in any manner facilitates the sale of a controlled drug. In Dodge Judge Rifkind observed, and Judge Weinfeld cited the opinion’s language (although only for this statement), that where contraband is not in the vehicle, what constitutes facilitation “is a question of degree, which is in turn a question of fact not readily susceptible to generalization.” 43 F.Supp. at 61. The facts here establish that Santiago and his confederate Montanez drove the Cadillac to a prearranged meeting on June 7 to discuss the sale of a controlled substance. That meeting did not result in an immediate sale but this is not unusual. Drug traffickers have to be wary of strangers until avarice ultimately overcomes vigilance. They drove back in the same vehicle. The deal was consummated a few days later by Montanez with drugs supplied by Santiago who knew they were to be sold to the agent. The transaction took place in the same apartment where Santiago initially met and discussed the sale to the agent. The conveyance of Santiago and Montanez in the Cadillac to and from the June 7 meeting did facilitate the sale of the drug, and for the reasons we have given was within the letter and the spirit of section 881(a)(4) of the statute. It has been suggested that on the basis of this decision, the Government may be encouraged to seize more vehicles of drug traffickers. So be it. The order and judgment of the district court is reversed and the defendant Cadillac is decreed forfeited to the United States. . H.R.Rep. No. 2751, 81st Cong., 2d Sess. (1950) states: Enforcement officers of the Government have found that one of the best ways to strike at commercialized crime is through the pocketbooks of the criminals who engage in it. Vessels, vehicles, and aircraft may be termed the operating tools of dope peddlers, and often represent major capital investments to criminals whose liquid assets, if any, are frequently not accessible to the Government. Seizure and forfeiture of these means of transportation provide an effective brake on the traffic in narcotic drugs. The proposed legislation is intended to provide additional means of combating this nefarious activity. 1950 U.S.Code Cong.Serv. 2952, 2953-54. . As Calero-Toledo notes, 416 U.S. at 680-81, 94 S.Ct. at 2090-91, the forfeiture statutes had their origin in the law of deodands where the value of the thing seized was forfeited to the King in the hope that the King would provide money for Masses for the benefit or repose of the soul of the deceased. In O. Holmes, The Common Law 7 (1881) the origins of the remedy are traced to the Bible. The term deodand derives from Deo dandum (to be given to God). Whatever spiritual motivation inspired the development of the deodand, today forfeiture is candidly aimed at the pocketbook of the criminal and not his immortal soul, although his impoverishment might be a first step in his regeneration. . We note that this language was employed in the former Narcotic Drugs Import and Export Act, as amended, Act of July 18, 1956, ch. 629, § 105, 70 Stat. 570, which was repealed with the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 1101(a)(2), 84 Stat. 1291. . United States v. One 1952 Ford Victoria, 114 F.Supp. 458 (N.D.Cal.1953) relied upon by the district court below, also involved section 781, an innocent conditional vendor and again the Government proceeded on the theory that the conveyance of the trafficker facilitated the transportation of the drugs even though they were not physically present in the car. . In Datsun, supra, the court noted that the purpose of vehicle forfeiture in enforcement of the narcotics laws was to prevent the flow of narcotics by depriving peddlers of the operating tools of the trade. The court limited the penalty to vehicles used as part of the modus operandi of an ongoing criminal narcotics enterprise or a car specifically adapted for illegal narcotics activities. 378 F.Supp. at 1205. Judge Leibell, however, gave the remedy a much broader reading in Pontiac, supra, pointing out that the automobile permits the dope seller to be more elusive in going to places to meet customers and confederates, to move about at will, to travel greater distances, and to escape observation, detection and capture. He concluded, “It is an operating tool of the dope peddler’s trade.” 83 F.Supp. at 1002. We agree. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_respond1_3_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 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. Ernest Wolfgang BRAUCH, Petitioner, Appellant, v. Robert RAICHE, United States Marshal, Respondent, Appellee. No. 79-1606. United States Court of Appeals, First Circuit. Argued Jan. 11, 1980. Decided March 5, 1980. Nancy Gertner, Boston, Mass., with whom Harvey A. Silverglate, Silverglate, Shapiro & Gertner, Boston, Mass., Alan Dershowitz, Cambridge, Mass., John Blackburn-Gittings, and Hallinan, Blackburn-Git-tings & Co., London, England, were ■ on brief, for appellant. Robert J. Lynn, Asst. U. S. Atty., Concord, N.H., with whom William H. Shaheen, U. S. Atty., Concord, N.H., was on brief, for appellee. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. COFFIN, Chief Judge. Ernest Wolfgang Brauch was arrested in Vermont on July 9, 1979, pursuant to the provisional arrest procedures of Article VIII(l) of the Extradition Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (“the Treaty”). As required by the Treaty, the government of the United Kingdom subsequently filed a formal request for Brauch’s extradition. On September 13, 1979, a hearing on the extradition request was held before a federal magistrate in New Hampshire. Sitting as a committing magistrate under 18 U.S.C. § 3184, the magistrate found Brauch extraditable on three separate sets of charges and issued a Certificate of Extraditability and Order of Commitment on October 18, 1979. Brauch then brought a petition for habeas corpus in the district court for the District of New Hampshire seeking relief from the magistrate’s order. The district court denied Brauch’s petition on November 2, 1979, and he brought this appeal. The magistrate’s Certificate of Extraditability has been stayed pending the outcome of this appeal. The Facts The United Kingdom’s extradition request set forth charges against Brauch for violating three provisions of the English criminal laws: seven counts of violating section 16(1) of the Theft Act of 1968 (the “check charges”); three counts of violating section 6(1) of the Forgery Act of 1913 (the “forgery charges”); and ten counts of violating section 15(1) of the Theft Act of 1968 (the “currency charges”). These charges arise out of two independent series of transactions engaged in by Brauch in 1974 and 1975. The formal request for extradition included the English depositions and exhibits upon which these charges were based, and at the hearing before the magistrate the government presented these exhibits and depositions in support of its petition for an extradition certificate. The factual allegations and the*" English charges resulting from them may be summarized as follows. A. The Commodities Transactions From 1967 through 1974, Brauch was engaged in commodities trading on the London Commodities Terminal Markets. At different times during this period Brauch maintained trading accounts at five London brokerage houses in the names of several different trading companies. To open these trading accounts, Brauch was required to make deposits to cover the cost of the initial dealings. Thereafter, if the value of the commodities purchased for the account declined due to market fluctuations, Brauch would receive a “margin call” requiring him to deposit additional funds to cover the decreased value of the assets held by his account. In 1974 the commodities markets suffered a period of sharp decline. On January 3, 1974, Anthony Gibbs Commodities, Ltd., with whom Brauch had been trading since 1967, made a margin call on the account of one of Brauch’s trading companies, Commodities Investment Trust. Brauch responded by sending Gibbs a check for £80,-000 drawn on the account of another of Brauch’s companies, Neptune Finance, Ltd. The check did not clear, however, and when no further funds were forthcoming, Gibbs, closed out Brauch’s trading accounts, which by then had a deficit of £55,000 owing to Gibbs. Brauch had also traded since 1967 with the brokerage firm of E. Bailey & Company, Ltd. Although Brauch had had difficulties meeting deficiencies in his account during 1973, Bailey allowed him to open a new account and commence trading under the name of Commodities Investment Trust, with the account personally guaranteed by Brauch. On May 15, 1974, Brauch wrote a check drawn on Neptune Finance to Bailey for £103,000 to meet a margin call, but the bank refused to honor the check for want of proper signature. On May 22, in response to a second margin call, Brauch gave Bailey a check for £300,000, signed by one M. Fulton and drawn on the account of Skokie Investments, Ltd., at the Bank of Montreal in the Bahamas. Brauch told Bailey that the check represented proceeds from the sale of some property to Fulton. When Bailey attempted to cash the check, however, it was informed that there were no funds in the Skokie account. Bailey finally closed out Brauch’s account and liquidated his holdings in mid-June, resulting in a deficit of £527,825. As a result of the allegedly bad checks issued to Gibbs and Bailey, and similar incidents regarding accounts opened during 1974 at G. W. Joynson & Company, Ltd., M. L. Doxard & Company, and Cometco Investments, Ltd., an indictment was returned against Brauch charging seven counts of “obtaining pecuniary advantage, namely the evasion of a debt” by means of “deception”, in violation of section 16(1) of the Theft Act of 1968 (the check charges). The theory underlying these charges, accepted by the magistrate at the commitment hearing, is that by issuing these checks, Brauch was able to engage in further trading by forestalling his brokers from closing out his accounts. Moreover, as a consequence- of their delay in liquidating Brauch’s accounts, which in turn resulted from their reliance' on Brauch’s assurances that the checks he had presented would be honored, the brokers suffered additional losses between the time of their margin calls and liquidation. The forgery charges arise out of Brauch’s dealings with one of these brokers, Cometco Investments, Ltd. As a precondition for allowing Brauch, acting through the name of Histon Developments, Ltd., to establish a trading position, Cometco had demanded that Brauch deposit £84,000. On August 5, 1974, Brauch delivered a check in that amount drawn on the account of Skokie Investments at the Bahamas branch of the Bank of Montreal. On August 7, Cometco learned that the check would not clear and demanded a telex confirmation from the bank that the funds would be received or else Brauch’s trading position would be closed out. That same day Cometco received a telex from Skokie Investments assuring it that the proceeds of the check would be paid by August 13 or 14. On August 9, with Brauch’s account showing a deficit of £20,000, Cometco again asked for assurances. Brauch reported that the London office of the Bank of Montreal had received a telex that the £84,000 was being sent forthwith. When Cometco confirmed that this telex had been received, it once again permitted Brauch to maintain an active trading account. Finally, after Comet-co still had not received the funds by August 15 and Brauch now faced a £60,000 margin call, the Bank of Montreal in London received a third telex stating that the funds were en route to London. Cometco never received the funds, however, and finally closed Brauch’s account on August 20, 1974. These three telexes form the basis of the three counts of uttering forged documents in violation of section 6(1) of the Forgery Act of 1913. The magistrate, after reviewing the evidence before him, concluded that neither Skokie nor the Bank of Montreal had sent any of the three telexes and therefore that Brauch had “sent or caused to be sent” the telexes. B. The Currency Transactions The events forming the basis of the currency charges against Brauch occurred while the Exchange Control Act of 1947 was in force in England. The Act sought to freeze the amount of foreign investments held by residents of England by restricting the flow of money out of the country. The Act created two classes of foreign currency — that subject to the restriction on exportation, and a second class, which came to be known as “investment currency”, that could be invested abroad without obtaining special permission from the Bank of England. Because investment currency could be invested abroad, a market developed for this currency. It was sold at a premium over the exchange rate for ordinary restricted currency. Since all currency looked alike, a system evolved in which “authorized depositories” would certify appropriate currency as being investment currency. Once certified, such currency could be freely traded on the currency market at a premium. In 1974 Brauch approached a firm of English solicitors and requested that they prepare a power of attorney to him from one Christina Reigleuth,'a British citizen. Using this power of attorney, apparently with a forged signature, Brauch approached one William Crossley of the accounting firm of W. O. Crossley & Co. to sell, purportedly on Reigleuth’s behalf, a packet of Grand Cayman bonds. Under then-prevailing law, if the bonds had been owned by a resident of the United Kingdom continuously since 1972, the proceeds from the sale of the bonds would issue in investment currency. Thus, by representing that Ms. Reigleuth, not himself, was the owner of the bonds, Brauch was able to secure premium-worthy investment currency from the sale. On a number of occasions from December, 1974, through early 1975, using similar means, Brauch arranged to exchange foreign securities or currency for investment currency by convincing Crossley and others to assure authorized depositories (London banks) that the currency was worthy of certification. Once these proceeds were certified, Brauch was able to convert the currency into pounds sterling on the money markets at the premium rate. During this period, Brauch realized a net sum of £2,500,000 from such transactions. Brauch was indicted under both the Exchange Control Act and section 15(1) of the Theft Act of 1968 for each of ten such transactions. The basis for the charges under the Theft Act is that Brauch dishonestly obtained from the Midland Bank British pounds sterling by falsely representing that the currency he offered in exchange was investment currency. Requirements for Extradition Under the Treaty As a threshold matter, we note that habeas corpus review of a magistrate’s extradition order is more limited than direct appeal, which is not available in extradition cases. Greci v. Birknes, 527 F.2d 956, 958 (1st Cir. 1976). The scope of our inquiry, therefore, is limited to determining “whether the magistrate had jurisdiction, whether the offense charged is within the treaty and by a somewhat liberal construction, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.” Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). Although appellant asserts that he is entitled to relief under each of these grounds for habeas corpus, the heart of his argument is that the magistrate misapplied the choice of law and “double criminality” principles embodied in the Treaty in determining whether the offenses charged were extraditable. Article III of the Treaty provides: “(1) Extradition shall be granted for an act or omission the facts of which disclose an offense within any of the descriptions listed in the Schedule annexed to this Treaty, which is an integral part of the Treaty, or any other offense, if: (a) the offense is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty; (b) the offense is extraditable under the relevant law, being the law of the United Kingdom or other territory to which this Treaty applies by virtue of sub-paragraph (l)(a) of Article II; and (c) the offense constitutes a felony under the law of the United States of America.” This section of the Treaty imposes on all extraditable offenses a requirement of “double criminality” — that is, an offense for which extradition is sought must be a serious crime punishable under the laws of both countries. The requirement that the acts alleged be criminal in both jurisdictions is central to extradition law and has been embodied either explicitly or implicitly in all prior extradition treaties between the United States and Great Britain since the Jay Treaty of 1794. See Collins v. Loisel, 259 U.S. 309, 311, 42 S.Ct. 469, 470, 66 L.Ed. 956 (1922) (construing the Webster-Ashburton Treaty of 1842). Two interpretive difficulties arise from the double criminality concept: when extradition is sought from the United States, what law should the extradition magistrate apply in determining whether the double criminality test is satisfied; and what degree of congruity is required between the corresponding English and American criminal offenses? The magistrate in this case determined extraditability by reference to federal criminal law and to the law of New Hampshire, the “asylum state”. Referring to these two bodies of law, the magistrate found that the acts that formed the basis for appellant’s indictments in England also constituted violations of analogous criminal provisions under United States law. Appellant argues that the magistrate erred both in his choice of law and in his eongruity analysis. A. Choice of Law Under appellant’s view of the proper extradition procedure, the Treaty language “punishable under the laws of both Parties” requires a magistrate to look first to federal law and then, if there is no federal provision comparable to the offense for which extradition is sought, to state law representing a consensus view of the states. New Hampshire law, he argues, is “idiosyncratic” and therefore inappropriate for determining extraditability under a treaty that refers not to the “law of the place where the fugitive is found”, but to the . “law of the United States”. The Supreme Court decisions construing the predecessor treaties between the United States and Great Britain, while venerable, are hardly clear in defining the proper approach to the choice of substantive law for the purposes of determining extraditability. In Wright v. Henkel, 190 U.S. 40, 28 S.Ct. 781, 47 L.Ed. 948 (1903), the Court noted that it was the law of the states to which courts were to refer for “specific definitions” of the crimes subject to extradition. Construing a provision requiring that the offense for which extradition was sought be a crime “[against] the laws of both countries”, the Court stated: “[W]hen by the law of Great Britain, and by the law of the State in which the fugitive is found [the' acts] are made criminal, the case comes fairly within the treaty . . . .” Id. at 61, 23 S.Ct. at 786. See also Collins v. Loisel, supra (assuming that the asylum state’s law was controlling); Kelly v. Griffin, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861 (1916). In Factor v. Laubenheimer, 290 U.S. 276, 54 S.Ct. 191, 78 L.Ed. 315 (1933), the Court addressed the choice of law principle implicit in Wright and Collins that extraditability could be established only on the basis of the asylum state’s law. Examining the provisions of the extradition treaty with Great Britain then in force, the Court found that with respect to those offenses enumerated in the treaty, the United States and Great Britain had agreed that such offenses were “generally recognized as criminal in both countries” and that the only inquiry into the criminality of the acts alleged was that “necessary to make certain that the offense charged is one named in the treaty.” Id. at 300, 54 S.Ct. at 198. The Court held, therefore, that absent an express requirement that the enumerated offenses be criminal under the laws of the asylum state, a fugitive could not escape extradition by showing that such an offense would not be punishable under that state’s law. Id. Although it is clear that Factor held criminality in the asylum state was not a necessary precondition to extraditability, it is not clear whether the Court also meant that a finding of criminality under that state’s law was always sufficient to justify extradition. Part of the rationale offered by the Court for its decision in Factor was a desire to avoid construing that treaty so that “the right to extradition from the United States may vary with the state or territory where the fugitive is found.” Id. at 300, 54 S.Ct. at 198. The Court was concerned that the treaty be construed so as to secure the intended equality and reciprocity between the parties. Id. at 293, 54 S.Ct. at 195. In light of the importance the Court placed on preserving reciprocity, we do not believe the Court’s disapproval of extraditability varying with state law would extend to the situation in which one state’s law might confer extraditability, while that of the preponderance of the states would not. A prerequisite under the Treaty for an extradition request by Great Britain is that the offense be one for which Britain would be willing to extradite. Thus, even if the asylum state from which Britain requests extradition is the only state criminalizing the conduct in question, the policy of reciprocity would be served since that state could presumably obtain extradition for the same acts from Britain. Appellant notes that the trend of modern extradition treaties, in response to the growth of a body of federal and more uniform state substantive law, has been to include provisions referring to the law of the United States rather than to the law of the individual asylum state. Concomitant with this trend, appellant argues, recent cases have declined to apply asylum state law when treaty provisions refer to the law of the United States. Appellant finds particular support for this argument in our decision in Greci v. Birknes, supra, 527 F.2d 956. In Greci we construed the probable cause requirement of the 1973 extradition treaty between the United States and Italy, which requires that there be sufficient evidence to justify the fugitive’s commitment for trial under the law of “the requested Party”. We concluded that the reference to the law of the requested party mandated application of the federal probable cause standard. We do not view our holding in Greci as controlling in this case. Greci concerned both a different treaty and a different problem. In reaching our conclusion in that case, we noted that during the negotiation sessions prior to adoption of that treaty the parties specifically sought to avoid a probable cause standard that would vary depending on the state from which extradition was sought. 527 F.2d at 958-59 & n. 5. Appellant offers no evidence that the framers of this Treaty intended the adoption of the “laws of both Parties” language in Article III to require that the magistrate base his finding of extraditability solely on a consideration of federal or consensus state law. Moreover, the probable cause provision construed in Greci, which is identical to that contained in Article IX of this Treaty, is procedural. See Factor v. Laubenheimer, supra, 290 U.S. at 290-91, 54 S.Ct. at 194. The considerations that would militate in favor of a uniform procedural rule do not necessarily apply to construction of provisions involving choice of substantive law. Application of federal procedural standards in no way impinges on the objective of reciprocity. Indeed, in Shapiro v. Ferrandina, supra, 478 F.2d at 910 n. 18, Judge Friendly noted that referring to state law for “delineating substantive elements of a crime” and to federal law for corollary matters was “quite reasonable”. We find neither the Supreme Court precedents nor the recent cases construing similar extradition treaties to be dispositive of the choice of law question in this case. While Wright v. Henkel, supra, on its face appears to command resort to the law of the asylum state, it was decided under a view of federal criminal law as nonexistent and state law as nonuniform — a situation far removed from the present state of criminal law. We do find guidance, however, in the policy that has consistently informed the Supreme Court’s approach to extradition cases. In Factor v. Laubenheimer, supra, 290 U.S. at 293-94, 54 S.Ct. at 195-96, the Court stated that narrow construction of extradition treaties is inconsistent with the principle underlying international agreements of this nature. Thus, the Court said, when faced with competing constructions of such a treaty, that construction should be adopted that enlarges the rights of the parties under the treaty. We hold, therefore, that the magistrate correctly relied on the law of the asylum state, New Hampshire, in determining the extraditability of Brauch for the offenses charged, regardless of whether that law represents the law of the preponderance of the states. B. Comparability of Offenses Appellant argues that in addition to determining extraditability by reference to the wrong substantive law, the magistrate did not apply a rigid enough congruity analysis to the offenses for which the government seeks extradition. Specifically, appellant asserts that the magistrate should have determined not only if appellant’s acts would be considered criminal in the United States as well as in England, but that he should also have compared each English offense with a corresponding American offense and determined that the elements, purposes, and punishments of those offenses were “substantially analogous”. According to appellant’s theory, if provisions defining two offenses punish similar conduct but differ in the scope of their liability, the double criminality requirement is not satisfied. The Supreme Court decisions on this issue do not support the view advanced by appellant. In Collins v. Loisel, supra, 259 U.S. 309, 42 S.Ct. 469, 66 L.Ed. 956, the appellant argued that the offense for which India sought extradition, “cheating”, which could be based on a false representation of performance of some future act, was not comparable to the offense of false pretenses under Louisiana law because the latter offense required a misrepresentation of a past or present fact. The Court rejected this argument, stating: “The law does not require that the name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions.” Id. at 312, 42 S.Ct. at 471. Similarly, in Kelly v. Griffin, supra, 241 U.S. 6, 36 S.Ct. 487, 60 L.Ed. 861, Canada had requested extradition for charges of perjury. Under Canadian law, conviction of the crime of perjury did not require proof that the false statements were material, while under the law of the asylum state, Illinois, materiality was a necessary element of the offense. The Court found no significance, however, in the mere possibility that some false statements might fall within the scope of the Canadian law that would not constitute perjury in Illinois. Id. at 14, 36 S.Ct. at 489. Because the statements on which the Canadian charges were based were “highly material” and there was “no attempt to go beyond the principle common to both places”, the Court upheld the extradition order. Id. at 14-15, 36 S.Ct. at 489. We find Judge Friendly’s opinion in Shapiro v. Ferrandina, supra, 478 F.2d 894, on which appellant relies for the proposition that extradition can be based only upon the comparability of the offenses rather than the mutual criminality of the acts on which they are based, to be distinguishable. Invoking the “rule of specialty”, which provides that a fugitive may not be tried by the requesting country for any offenses other than those for which extradition was granted, Judge Friendly scrutinized the elements of each of the crimes for which the Israeli government had requested extradition and demanded strict correspondence of each charge to some felony under United States law. This approach was prompted by a concern that “the multiple characterizations of the acts charged raise potential problems of greatly increased punishment through successive sentences.” Id. at 909. In this case, however, Great Britain has sought extradition for only a single offense for each of the alleged acts of appellant. We agree that under the principle of specialty, which is incorporated in Article XII of the Treaty, we must examine the extraditability of each of the offenses in the extradition request. But we hold that this requires us only to determine that the acts upon which the English charges are based are proscribed by similar criminal provisions of federal law, New Hampshire law, or the law of the preponderance of the states. The Check Charges. The check charges in the English indictment were based upon appellant’s alleged use of bad checks to gain a “pecuniary advantage, namely the evasion of a debt.” The magistrate found that the appellant’s scheme to forestall the liquidation of his commodities trading accounts would constitute a felony under both the New Hampshire consolidated theft statute, R.S.A. 637:4, and the New Hampshire bad check statute, R.S.A. 638:4. Appellant argues that neither of these New Hampshire offenses is comparable to the English offense of engaging in deception to gain a pecuniary advantage, since the latter punishes conduct that would not be criminal under the New Hampshire provisions. Our inquiry, however, is not whether all conduct punishable under the English theft act would be criminal under these statutes, but whether the particular conduct in this case is made criminal under both countries’ laws. Moreover, we need not analyze each of the statutory provisions under which appellant’s acts might be deemed criminal; it is sufficient that there be one such comparable offense. We find that with respect to the check charges, appellant’s conduct falls within the literal scope of R.S.A. 638:4, the New Hampshire bad check statute, and therefore prima facie satisfies the double criminality requirement of the Treaty. 1. Although we do not accept appellant’s argument that strict congruity of offenses is necessary to meet the test of 'double criminality, we agree that the offenses of the two countries must be substantially analogous. In this instance both of the provisions — section 16(1) of the English theft act and R.S.A. 638:4 — punish conduct similar to the Treaty offense of obtaining property by false pretenses. Appellant argues that the acts alleged involved no deprivation of property, but merely the postponement of a preexisting debt. However, the record indicates that appellant’s check-kiting resulted in greater losses to his brokers than they would have suffered if they had liquidated his holdings at the time of their first margin calls. Because the market value of the commodities credited to Brauch’s accounts was falling, when his brokers relied on the soundness of his checks written to meet the margin calls on those accounts they were in effect advancing him additional credit. Appellant obtained more than just the postponement of a debt; he gained the opportunity to continue speculating in the market and possibly reaping a profit, while his brokers bore the full risk of any further losses. Both the opportunity and the risk constituted something of value. Both the English theft act provision covering evasion of a debt and the New Hampshire bad check statute in this instance punish conduct falling within the broad scope of the offense of obtaining property by false pretenses. See generally W. LaFave & A. Scott, Handbook on Criminal Law §§ 90, 92 (1972). 2. The Forgery Charges. The forgery counts in the English indictment, charging appellant with uttering forged documents, on their face fall within the schedule of Treaty offenses, which includes “an offense relating to counterfeiting or forgery”. The magistrate found that appellant’s acts forming the basis of these charges, sending or causing to be sent telexes to Cometco’s London bank assuring it that the check tendered by appellant was backed by sufficient funds, would constitute an offense under both the federal wire fraud statute, 18 U.S.C. § 1343, and the New Hampshire forgery law, R.S.A. 638:1. Appellant argues that the offense of federal wire fraud is completely different from that of forgery, sharing only the single common element of fraud, and therefore cannot satisfy the double criminality standard. With respect to the New Hampshire forgery law, he argues that the forged telexes he allegedly “uttered”'are not within the class of documents the forgery of which constitute a felony under that statute. We find, however, that the magistrate was correct in holding that appellant’s acts come within the reach of the New Hampshire forgery law. Section 638:1 III provides that the utterance of a forged writing with intent to defraud is a class B felony under the statute if the “writing” is or purports to be “a check, an issue of stocks, bonds, or any other instrument representing an interest in or a claim against property, or a pecuniary interest in or claim against any person or enterprise.” The crucial question is whether the telexes informing the London branch of the Bank of Montreal that funds credited to Cometco’s account were en route to London constituted documents representing a pecuniary interest in property or a claim against the bank. We agree with the government’s contention that if the telexes had been genuine, it is likely that Cometco would have had a cause of action against the Bank of Montreal based on its.detrimental reliance on the telexes. While neither party has cited New Hampshire case law that allows us to predict with certainty whether uttering these telexes would constitute felonious forgery under R.S.A. 638:1, we are satisfied that the appellant’s conduct is sufficiently within the scope of that statute to meet the double criminality requirement. 3. The Currency Charges. The government’s argument for extradition for appellant’s acts in connection with his currency transactions rests solely on the English charges that these transactions were violative of section 15(1) of the Theft Act of 1968. The magistrate found the double criminality test satisfied because the acts supporting these charges would also have constituted felonies under the New Hampshire theft statute, R.S.A. 637:4. Appellant argues that even though the English charges are denominated violations of that country’s theft act, they rest solely on the alleged violations of the Exchange Control Act, which was enacted to further monetary policies peculiar to Great Britain and has no analogue in American law. Thus, appellant’s brief asserts that “but for the system of exchange controls, Brauch would have been a shrewd business man.” We reject this argument. The significant common element in section 15(1) of the Theft Act of 1968 and R.S.A. 637:4 is “deception”. It is depriving another of property by means of deception that both statutes proscribe as criminal behavior. We do not think that the double criminality requirement extends so far as to require that the reason particular conduct constitutes deception be some substantive law common to both jurisdictions. Appellant argues further that the currency transactions could not constitute deprivation of property by deception because there was no victim of the deception; no private individual suffered any loss as a result of his fiscal chicanery. He bases this contention on the workings of the Exchange Control Act, which provided that once currency had been certified as “investment currency” it could not thereafter be “unscrambled” from other legitimate currency. Thus, he argues, the initial purchaser from appellant, arid any subsequent purchasers, got exactly what they bargained for: fungible investment currency. The magistrate rejected this argument, holding that there need not be any immediate loss to an identifiable victim, but only the potential for such loss. Because he found in the regulations promulgated under the Exchange Control Act the authority to “unscramble” fraudulent transactions such as those allegedly engaged in by appellant, he concluded that there was a theoretical victim of appellant’s scheme. We do not find the magistrate’s “theoretical victim” scenario convincing. Nor can we accept the government’s argument that the double criminality requirement is satisfied because the currency scheme comes within the ambit of the crime of obtaining property by false pretenses. It is true that there is some authority for the government’s assertion that the crime of false pretenses does not require that the person from whom the property is obtained (in this case, those individuals who exchanged their pounds sterling for appellant’s falsely certified investment currency) suffer any financial loss. See United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932); W. LaFave & A. Scott, Handbook on Criminal Law 669-70 & n. 97 (1972). In this case, however, both the English statute under which appellant was charged and the comparable New Hampshire statute criminalize the “deprivation” of another person’s property. While those who purchased investment currency from appellant may have been deceived, the facts do not support a finding that they suffered any deprivation of property; they appear to have obtained precisely what they paid for. We conclude that since the particular conduct in this case is not criminal under either section 15(1) of the Theft Act of 1968 or under R.S.A. 637:4, appellant is not extraditable on these charges. C. Probable Cause Article IX(1) of the Treaty provides that “[e]xtradition shall be granted only if the evidence be found sufficient according to the law of the requested Party . to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party.” The magistrate stated explicitly the evidentiary basis for his findings of extraditability with respect to each of the separate charges against appellant. Our review under these circumstances is limited to determining whether in fact there was “any” evidence providing the magistrate with a “reasonable ground to believe the accused guilty.” Fernandez v. Phillips, supra, 268 U.S. at 312, 45 S.Ct. at 542. We have no difficulty in finding that there was sufficient evidence before the magistrate to support his probable cause findings with respect to the charges arising out of the commodities transactions. Appellant argues that there was no factual basis for the check charges, since he had obtained nothing of value in exchange for his “rubber” checks. But the record supports the magistrate’s conclusion that appellant obtained the opportunity to speculate on the commodities markets without further risk of loss to himself, and that his actions therefore deprived his brokers of something of value. Appellant also contends that there was no probable cause to support the forgery charges because no evidence directly connected him with the sending of the telexes. Furthermore, he argues, there is no evidence that the telexes were in fact false. We find neither of these arguments convincing. That the check from Skokie Investments was never paid is sufficient evidence for the purposes of our review that the telexes were false. With respect to the contention that the facts do not link appellant to the telexes, we find the inference drawn by the magistrate— that none of 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_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 v. James JONES, Jr., Appellant. No. 73-2102. United States Court of Appeals, District of Columbia Circuit. Argued March 3, 1975. Decided Aug. 8, 1975. Fred Warren Bennett, Washington, D. C. (appointed by this court), for appellant. Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Robert S. Tignor, Asst. U. S. Attys., were on the brief, for appellee. Before RICHARD T. RIVES, Senior Circuit Judge for the Fifth Circuit, and WRIGHT and McGOWAN, Circuit Judges. Sitting by designation pursuant to Title 28, U.S.Code § 294(d). McGOWAN, Circuit Judge: Appellant stands convicted of armed robbery, 22 D.C.Code §§ 2901, 3202, and assault with a deadly weapon, 22 D.C. Code § 502. In his initial brief, appellant challenged those convictions on the grounds that (1) they are based on identification evidence derived from an improperly suggestive confrontation at the scene of the crime, (2) they are in any case based on insufficient evidence, and (3) they follow upon a prejudicial error by the district judge in giving a supplemental instruction to the jury while appellant was absent from the courtroom. In the course of oral argument, a fourth issue was identified by the court, as to which counsel was permitted to file a supplemental memorandum. That had to do with the question, then pending before the court en banc, of the applicability of 14 D.C.Code § 305, mandating impeachment by prior conviction, to trials of D.C.Code offenses in the District Court. Finding no merit in any of these matters, we affirm. I At approximately noon on March 3, 1972, an armed robbery occurred at the Home Federal Savings and Loan Association at Georgia and Alaska Avenues, N. W., Washington, P. C. According to one of the bank’s tellers, a Mrs. Waugh, the robbery was committed by four Negro males whose faces were hidden by ski masks. She and the other occupants of the bank were forced to lie face down on the floor while the robbery was in progress. They thus had little or no opportunity to observe the intruders, and did not subsequently identify appellant as one of them. At the time of the robbery a special police officer by the name of Mr. Furr was working in a liquor store directly adjacent to the bank. He was alerted by a customer that the robbery was in progress. Gun in hand, he left the store and approached the entrance of the bank. He saw two men outside the bank and two other men in its doorway. When he saw that one of them was also armed, he jumped back. There was an exchange of shots, in which Furr was wounded in the arm. Running back through the liquor store and out its back door, Furr caught sight of one of the robbers escaping down an alley which led from Kalmia Street (behihd the bank) to Juniper Street. He later found a gun, a mask, and gloves in that alley. However, he did not positively identify appellant as one of the four men he had seen. Chris Jackson, a 15-year old student, was sitting in his house on Kalmia Street, when he heard the gunfire. Rushing to the window at the back of his house, he observed four men running down the same alley that Furr had seen one of the robbers enter. He saw only the legs of the first man. The second and third carried what appeared to him to be money bags, from which bills were falling as the men ran. The fourth man wore a white trench coat and carried a gun. Police later found a number of bills at the spot Jackson directed them to. Jackson also was unable later to identify appellant as one of the men in the alley. The one witness who did positively identify appellant, and around whom most of this controversy revolves, was Lucille Berg. As the robbery was taking place, she and a friend, Miriam Shuman, were on their way by car to lunch at Hofberg’s Restaurant, located at Georgia and Alaska Avenues across from the bank. As she turned the car onto Kalmia Street, Mrs. Berg heard a gunshot, slowed the car, and looked over her shoulder out the rear window. She saw a man kneeling with a gun in his hand. This, it was later established, was Furr. She also saw two other men run from the direction of the bank and across Kalmia Street behind her. A few seconds later two more men ran across the street. One of the second pair was dressed in a white trench coat and carried a gun in one hand and what looked like a money sack in the other. Having crossed Kalmia Street, all four men turned down an alley on the other side. Mrs. Berg was familiar with the area and knew where the alley came out on Juniper Street. She drove around the block onto that street and there saw the four men get into two cars, a green Volkswagen and a red car that she described to police as “foreign with a slant back.” The man in the white trench coat was standing by the right front fender of the red car. Mrs. Berg observed his face, which by this time was unmasked, as close as 10 — 15 feet. She noted that he wore a beard or goatee and a short bush haircut. On their way back to the bank, where the two women intended to report their observations to the police, the red car pulled up behind them at a stop sign. Mrs. Berg noted the numbers 868 on the car’s license plate. She also observed that the ear turned right from the stop sign onto Alaska Avenue and headed toward 16th Street. All this she and Mrs. Shuman (who corroborated her testimony throughout) reported to the police and F.B.I. agents at the bank. At 12:05 P.M. Officers Acton and Sweeney of the Metropolitan Police Department were cruising in the 3600 block of 16th Street, N.W. They received a radio lookout for two automobiles, a green VW and a second car, red in color with a “swooped type roof” and a license plate which bore the numbers 868. As they approached 16th Street and Colorado Avenue, they saw a green VW turn west onto Colorado Avenue. They then saw a red Pinto travelling south on 16th Street at an excessive rate of speed. The numbers 868 appeared on its license plate. Before they could reach the speeding car it was stopped by another officer, one Logan, driving a separate scout car. The Pinto’s two occupants, one Gary Frazier, who was at the wheel, and appellant, who was in the passenger seat, were placed under arrest. Neither of the occupants wore a white trench coat, and nothing of an incriminating kind was found in the car. The suspects were taken first to the 10th Precinct for initial questioning and then to the bank where the robbery had taken place, arriving there about forty minutes after the arrest was made on 16th Street. Appellant was transported by the police. Frazier, at his own request and accompanied by Officer Acton, was permitted to drive the Pinto, first to the Precinct and then to the bank, where he parked it a short distance away. Mrs. Berg and Mrs. Shuman had by this time belatedly settled in to lunch at Hofberg’s. F.B.I. Agent Buscher, to whom they had first given their account of the fleeing robbers, now interrupted them to ask if they would return to the bank to “try to identify some suspects.” They were apparently also told that a car had been taken into custody. On their way back to the bank, Mrs. Berg saw the parked Pinto and remarked (apparently spontaneously) that this was the same car in which she had seen the robbers escaping. Upon returning to the bank, Mrs. Berg and Mrs. Shuman were kept apart from the others present and were taken to the rear of the bank. The two suspects were brought into their view. In Mrs. Berg’s words, “[t]hey were just standing and talking in the vice-president’s area or the manager's area and we stood back and looked at them, one at a time.” Tr. 74. Mrs. Berg positively identified the appellant as the man who had been wearing the white trench coat. She was unable to identify the second man, but insisted that she knew appellant by his face. Mrs. Shuman also identified appellant, but on a more tentative, “look-alike” basis. These identifications of appellant in the bank were testified to at trial by Mrs. Berg and Mrs. Shuman themselves, and also by F.B.I. Agent Buscher. Mrs. Berg made an in-court identification as well. It is this in-court identification and testimony as to on-the-scene identifications that appellant sought unsuccessfully to suppress. II Appellant’s suppression claim is based on the presence of the red Pinto outside the bank. Assertedly, this circumstance was “so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 301—02, 87 S.Ct. 1967, 1972, 18 L.Ed. 1199 (1967). If that were so, evidence of the identifications made in the bank would be inadmissible, and a hearing would be required to determine whether even the in-court identifications by the two women could be admitted as having an independent source. Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1237 (1968) (en banc), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). But we see no due process violation in the confrontations that took place. This court has a number of times applied the principles of Stovall and Clemons to so-called “show-ups” of the suspects of a crime near the place and time of its commission. Following the command of those cases that we look to the totality of circumstances which may justify or condemn such witness confrontations, we have held that on-the-scene confrontations are to be permitted “absent special elements of unfairness.” Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284 (1969), cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969); United States v. Perry, 145 U.S.App.D.C. 364, 449 F.2d 1026, 1038 (1971); United States v. Hines, 145 U.S.App.D.C. 249, 455 F.2d 1317, 1328 (1971), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). Undoubtedly, there was a degree of suggestiveness present in the confrontation in this case. Although there is contradictory testimony on the point, it appears that Mrs. Berg and Mrs. Shuman were in effect informed, when they were summoned from Hofberg’s Restaurant, that the suspects had been seized in a car meeting the description they had given. They certainly knew that the suspects had been seized in the car parked outside the bank. The classic dangers of misidentification in on-the-scene witness confrontations were present, not the least of them the pressure on Mrs. Berg and Mrs. Shuman to prove their information accurate and thereby justify the actions taken by the police in reliance on it. But we have not permitted speedy, on-the-scene witness confrontations because they were not suggestive. On the contrary, we have recognized from the beginning that “confrontations in which a single suspect is viewed in the custody of the police are highly suggestive.” Russell v. United States, supra, 408 F.2d at 1284 (emphasis added). We have permitted them nonetheless because we have considered their dangers to be surpassed by their value in terms of the greater accuracy of witnesses’ recollections when they are fresh and in terms of the benefit to society and suspects alike from having crimes quickly resolved. Appellant has shown us no “special element of unfairness” that would upset that calculation in this case. We do not think the presence of the car necessitates reversal. After all, a suspect is likely to be found with some incriminating article — typically clothing — or he would not be a suspect. In other respects the confrontation was carefully conducted and, indeed, seems less objectionable than others that have passed muster. Appellant was not wearing handcuffs; nor was he behind bars or subject to any other suggestive restraint. Compare Russell v. United States, supra. He was not clothed in the way that the witnesses had seen the robbers earlier. The identifications seem generally reliable, Mrs. Berg’s in particular. She had seen appellant several times, from as close as ten feet, from the relative safety of her car, and with the specific purpose of later identifying him. She recognized him by his face, rather than by his general appearance or build. She had accurately described his beard and haircut, as well as the license plate numbers on the car he was riding in, before she ever saw him or his car back at the bank. Appellant’s case for misidentification is thus not a strong one. Some discussion is merited of an aspect of the Stovall case which has not loomed large in our previous “show-up” cases, but which appellant brings to our attention in this one. Stovall condemned confrontations that were “unnecessarily suggestive,” thus implying a duty on the part of the police to minimize suggestiveness, and a duty on the part of the courts to exclude evidence derived from a witness confrontation, even if we think it on the whole a reliable one, if it could have been more reliable. See also Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (declining to apply this aspect of Stovall retroactively). Appellant’s argument is that it was unnecessary to have the red Pinto parked outside the bank. The car was not where it was, however, at the insistence of the police, but at the request of appellant’s companion, Frazier. There is no suggestion that the police deliberately planned to place the car where it could serve a suggestive purpose. To be sure, the police could have prevented Frazier from parking where he did, but in doing so would have shown extraordinary presence of mind and attentiveness to an interest of the suspects which even the latter themselves did not perceive. We could not require the police to take such scrupulous care, all the while urging them to act quickly, unless their failure to do so resulted in extreme prejudice, which, as we have said, it did not in this case. Ill Appellant’s second challenge is to the trial judge’s failure to acquit him on the ground of insufficient evidence. He argues the point separately with respect to his two convictions. As to the first, that for armed robbery, he concedes that the evidence was sufficient to prove that he was the man whom Mrs. Berg and Mrs. Shuman (and also Jackson) saw fleeing the scene of the robbery in a white trench coat. What he denies is that the evidence showed that that man was also among those who took part in the robbery. It is true that neither Waugh, who was inside the bank, nor Furr, who was just outside it, testified to their having seen a man in a white trench coat. Jackson saw the man some time later, and Mrs. Berg and Mrs. Shuman could only say that they had seen him come from the direction of the bank. Waugh was face down on the floor, however, and Furr was being shot at, so that their failure to recall seeing such a man in or coming out of the bank is certainly not inconsistent with there having been one. Waugh and Furr were each sure that they saw four men. Mrs. Berg and Mrs. Shuman also saw four men, one of them in a white trench coat, and this must have been only moments later. It strains credulity to suggest, as appellant does, that these were not the same four men. The jury was certainly free to reject the suggestion, especially in the absence of any explanation of where, in those few moments, any of the first four men could have gone to, or their replacements come from. » As for appellant’s other conviction, if the evidence was sufficient for the jury to conclude that appellant was among those who entered and robbed the bank, it was also sufficient to support appellant’s conviction for the deadly weapon assault upon Furr. Appellant’s contention is that “there was no evidence appellant fired the pistol at Lewis Furr.” In fact the man in the white trench coat was the only one whom the witnesses recalled as having a gun. But the jurors need not have so found. They were properly instructed that aiding and abetting the assault would make appellant liable as a principal, and their conclusion that he was among the bank robbers was itself sufficient to establish that he did aid and abet the assault. It is the settled rule that one who commits a crime is also guilty as an accessory of any other crimes occurring as the “natural and probable consequences” of the crime he himself commits. See, e. g., United States v. Clayborne, 166 U.S.App.D.C. 140, 509 F.2d 473 (1974); In re Reeder, 264 A.2d 893 (D.C.App.1970); W. Clark & W. Marshall, Law of Crimes, 529 (7th Ed. 1967). If there is a more natural and probable consequence of armed robbery than that the arms will be used and someone injured, we do not know what it is. Since he carried a gun, even if he did not use it, appellant is not in a strong position to raise the primary objection to the “natural and probable consequences” rule — that it imputes guilt for a crime for which the necessary mental state may be lacking. Cf. United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938) (L. Hand, J.) (accomplice liability has “nothing whatever to do with the probability that the forbidden result will follow upon the accessory’s conduct”); W. LaFave & A. Scott, Handbook on Criminal Law 515 — 17 (1972) (disapproving the rule as “inconsistent with our more fundamental principles of criminal law”). IV Appellant’s third challenge is based on the trial judge’s having given the jury, under the circumstances now to be described, a supplemental instruction while appellant was absent from the courtroom. During the trial the district judge repeatedly advised appellant of his right to be present during all proceedings. He also informed appellant that his unexplained absence from the courtroom at any time would be taken as a waiver of that right. After the jury retired, the judge repeated these points to appellant, specifically warning him that the jury might ask for additional instructions, and that appellant should be present if they did. Court was then recessed. This was at 5:28 P.M. At 5:31 P.M. court was reconvened upon receipt from the jury of a request for additional instructions. Though they had previously been instructed that the principle of aiding and abetting applied “in this case,” the jurors were unsure whether it applied to both the assault count and the armed robbery count, or only to the former. The judge decided to grant the request, but appellant was nowhere to be found. With the consent of appellant’s counsel, the judge did not wait, but gave the following supplemental instruction in appellant’s absence: The jury may recall that at the time that I instructed you, I indicated to you and stated that there was a principle of law known as aiding and abetting that is applicable to this case, and since it is applicable to this case, it is applicable to each count of the case. Tr. II 296-297. Appellant reappeared in the courtroom a short time later and, learning what had transpired, offered no objection. His claim now is that he had not validly waived his right to be present, at least not until the judge had waited a “reasonable” time for him to return. Though appellant casts his claim in constitutional terms, see Hopt v. People of Territory of Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), he might also have argued that he was not “voluntarily absent” in the manner required by Fed.R.App.P. 43. However the claim is styled, we see no need to pass on its merits, since, even if error occurred, it clearly was harmless. Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434 (1963). Cf. United States v. Neil, 320 F.2d 533 (3d Cir. 1963) (prejudice to defendant from his absence during charge to jury not necessary). We can see nothing even faintly objectionable in the instruction in question. Appellant urges in his brief that it “may have highlighted” the aiding and abetting principle, but the problem was obviously already “highlighted” for the jurors by their own confusion, which the judge only acted to dispel. The supplemental instruction really was nothing more than a clarified restatement of the original aiding and abetting instruction. For a case holding that just such a clarification of an aiding and abetting instruction may harmlessly, if erroneously, be made out of the presence of the defendant, see United States v. Arriagada, 451 F.2d 487 (4th Cir. 1971). As for argument that the jury may have “speculated adversely to the [appellant] about his absence from the courtroom,” we need only say that, standing alone, it does not establish the necessary “reasonable possibility of prejudice.” Walker v. United States, supra 322 F.2d at 435. Cf. Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046, 1050 (1971). V Presumably acting by reference to 14 D.C.Code § 305, the trial court instructed appellant that he would expose himself to impeachment by a prior conviction for armed robbery if he decided to take the stand in his own defense; and at least partly for that reason appellant elected not to testify. When, during oral argument of this appeal, the court noted that the applicability of Section 305 to trials of D.C.Code crimes in the District Court was pending before the court en banc, appellant sought and was granted leave to raise the issue by supplemental memorandum. We thereafter deferred disposition of this case pending the en banc decision. That decision was forthcoming on June 16, 1975, in the opinion governing the group of four appeals consolidated for en banc consideration known as United States v. Belt, 169 U.S.App.D.C. -, 514 F.2d 837 (1975). Three of those appeals involved trials only of D.C.Code crimes, and it was held in respect of them that the D.C. impeachment statute applied. Belt itself involved a trial of one U.S.Code and one D.C.Code offense combined in the same indictment, in which trial impeachment was permitted by reference to Section 305. Because the jury acquitted of the federal offense, and convicted only of the local, it was argued that application of the statute was not error requiring remand for consideration of the admissibility of the pri- or conviction under the discretionary rule. We held that the defendant was entitled to a trial free of the statute, and that a remand was necessary. In reaching this result, the court en banc explicitly adopted the approach of the division in United States v. Hairston, 161 U.S.App.D.C. 466, 495 F.2d 1046, 1054 note 13 (1974), where it was said: To the extent that confusion in the conduct of trials may be anticipated in those cases where the United States Attorney uses the authority given him under the reorganization statute to combine local and federal crimes in the same indictment, resulting in their trial together in the United States District Court, it would appear that the federal forum’s evidentiary law would govern impeachment by prior conviction. The United States Attorney is not, of course, bound under the statute to combine local and federal charges, and is, accordingly, under no inescapable necessity to try local crimes under other than local law. The indictment in the case before us as originally returned included, in addition to the D.C.Code offenses of which appellant was eventually convicted, two counts under the U.S.Code for robbery of a federally-insured savings and loan association (18 U.S.C. § 2113(a)). These two counts were, however, dismissed by the Government, with the court’s permission, at a pretrial hearing. The trial itself was, accordingly, confined to the D.C.Code offenses, of which the District Court at that time had exclusive jurisdiction since the indictment was returned during the eighteen-month transitional period (February 1, 1971 to August 1, 1972) established by 11 D.C.Code § 502(2). Appellant now argues that, because the indictment in this case as originally returned contained both U. S. and D. C. offenses, Belt requires that there be a remand to the District Court with directions to reexamine the question of appellant’s amenability to impeachment by prior conviction in the light of the discretion then available to it under the Luck-Gordon rule (which has been superseded as of July 1, 1975 by the Federal Rules of Evidence). Belt does not extend so far. We held there that, where a defendant is actually tried simultaneously for both federal and local offenses, it is feasible for that trial to be held only by reference to one set of evidentiary principles, and that the governing evidentiary law would be federal. There was no trial here of federal and local offenses at the same time. The indictment as returned, it is true, included both, but the former disappeared before trial. We find no merit, therefore, in appellant’s post-Belt contention. Affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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. KING OIL CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 11316. Circuit Court of Appeals, Fifth Circuit. Feb. 18, 1946. WALLER, Circuit Judge, dissenting in part. Harry C. Weeks, of Fort Worth, Tex., for petitioner. Robert N. Anderson, Helen R. Carloss, and Maryhelen Wigle, Sp. Assts. to Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and Bernard D. Daniels, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent. Before McCORD, WALLER, and LEE, Circuit Judges. LEE, Circuit Judge. When petitioner, a Delaware corporation, filed its income and excess profits tax return for the calendar year 1939, it deducted from gross income, as ordinary and necessary business expense, intangible costs incurred in the drilling and development of wells on certain leasehold properties in Texas as follows: Claimed Name of Lease Well No. Deductions Waggoner “N” 9 $ 3,977.08 Crudup 6 6,882.29 Waggoner “R” 7 and 8 4,497.05 King-Waggoner 3 5,895.79 Rathke 3 3,612.96 Wigley 4, 5, 6 and 7 46,734.03 J. & J. Wag-goner 1 12,484.28 The Commissioner held the claimed deductions to be capital expenditures and disallowed them as expenses. The Tax Court upheld the Commissioner, and petitioner brought the controversy to us for review. The question presented is whether the intangible drilling and development costs were ordinary and necessary business expenses, deductible under’ the regulations, or capital expenditures, part of the consideration for the leases, not deductible. Neither the amounts expended as intangible costs nor the facts as to the development are in dispute. The petitioner’s attack is directed against the finding of the Tax Court that the amount expended by the taxpayer in drilling each well “was part of the consideration for the assignment of the interest in the oil properties,” and its conclusion that the amount so expended was capital expenditure. The petitioner is lessee under the Wag-goner “N” lease of December 9, 1935, covering 320 acres and under the Waggoner “R” lease of November 31, 1936, covering 80 acres, and assignee under the King-Waggoner lease of October 14, 1937, covering 320 acres. The three leases, identical in form and differing only as to the acreage covered, provide: “As a part of the consideration hereof the Lessee covenants and agrees and binds himself to begin actual drilling of a well on said premises within 30 days from date hereof, and to prosecute the drilling thereof with due diligence to a depth of 2400 feet, unless oil or gas is found and produced and saved at a lesser depth. “If no well be begun hereon, as above provided, or if a well is begun and the drilling is not prosecuted with due diligence, as herein provided, or if said well should be abandoned, (failure to drill for as much as 30 days at any one time, shall be an abandonment) then this lease shall immediately become null, void and of no effect and shall automatically revert to the Lessor herein without the action of any court. , “Provided, however, in case a well is abandoned, and the next well shall be drilling within 20 days from abandonment of the former well, the Lessee shall have 60 days from the completion of one well in which to begin the- actual drilling of another well, such well to be prosecuted with due diligence and to be under the same conditions, requirements and limitations as the first well mentioned herein. And the Lessee shall and will continue to dig additional wells on said tract, each succeeding well to be begun within 60 days from the completion of the preceding well, and to be drilled under the same conditions, requirements and limitations as provided for the first well, until the Lessee shall have dug a well on each twenty acres herein, the well for a center. Only producing wells shall hold twenty acres in a square form, the well for a center, for the time herein specified.” T. J. Waggoner and J. L. Waggoner executed on November 19, 1937, the J. & J. Waggoner lease, covering 244.35 acres of land. The pertinent stipulations therein follow: “Witnesseth: That for valuable consideration to lessor, in hand paid by Lessee, receipt whereof is hereby acknowledged. and of the covenants and agreements hereinafter contained on the part of lessee to be paid kept and performed, and subject to the conditions and reservations hereinafter set out, have granted, demised, leased and let and by these presents do grant, lease, and let unto the said lessee, for the sole and only purpose of mining and operating for oil and gas and of laying pipe lines and of building tanks, powers, [sic] stations and structures thereon to produce save and take care of said products, all that certain tract of land situated in the county of Wichita, State of Texas, described as follows, to-wit: íj< ^ % “It Is Agreed, that this lease shall remain in force for a term of three years from this date. If at the end of such three year period the lessee is then engaged in drilling a well on said premises, this lease shall continue in force as to all of said land so long as such drilling continues, and, such drilling shall be considered as being continuous so long as no more than six months elapses between the completion of one well, either as a commercial producer or a dry hole, and the commencement of a subsequent well. Whenever twelve wells have been drilled on said leased premises, no further obligation for drilling on said premises shall be required except to protect the same from off-set drainage on lands owned by persons other than lessors. However, if drilling operations have ceased, or when drilling operations cease after the expiration of such three years primary term and if twelve wells have not theretofore been drilled either as producers or as dry holes, then this lease shall continue in full force and effect as to all wells then producing oil and/or gas so long as any such wells so produce, but only as to 20 acres for each such well so drilled such 20 acres for each well to be selected and designated by the lessee so as to include all' of said wells. The lease, however, shall terminate at the end of three years or upon the cessation of drilling operations thereafter prior to the completion of twelve wells, as to all of said land except 20 acres for each such well to be designated by the lessee in the manner above set out.” The three Waggoner Estate leases provided that each producing well drilled will hold 20 acres in a square with the well as the ¿enter; the J. & J. Waggoner lease differs only in that it permits the lessee to select the 20 acres around the well. Petitioner, however, contends that the 320 acres in the Waggoner “N” lease cover an irregular area, and that at the commencement of well No. 9 four producing wells were within the limits of the Northeast Quarter, containing 80 acres. It admits that the 20-acre square with well No. 9 as the center would not include any of the prior wells drilled, and that at most the 20-acre square would overlap by 273-% feet the 20-acre square with well No. 8 as the center. It also admits that the 20-acre square around well No. 8 would include the locations of three other producing wells on the Northeast Quarter. Five producing wells and one dry hole were drilled on the Waggoner “R” 80-acre lease prior to 1939, but the wells were not so located as to place a well on each 20 acres with “the well for a center” as required by the lease. Twenty acres in a square with well No. 5 as the center includes the locations of wells No. 7 and No. 8, drilled in 1939. The two 20-acre squares with wells No. 7 and No. 8 as their centers include acreage not within the 20-acre squares around wells previously drilled. Two producing wells were drilled on the King-Waggoner 320-acre lease prior to 1939. A 20-acre square around well No. 3 drilled in 1939 includes acreage not embraced by the other two wells. Each well drilled by petitioner in 1939 on the premises covered by the Wag-goner Estate leases extended to petitioner, by the terms of the leases, a new right— security against loss of the well drilled and accompanying acreage, or security against loss of accompanying acreage. Under similar provisions in the J. & J. Waggoner lease the drilling of well No. 1 vested petitioner with the right to hold the well and 20 acres to be selected by it around the well. S. W. Wigley, acting individually and as community administrator of the community estate of himself and his deceased wife, on June 30, 1937, executed the Wig-ley lease covering 160 acres of land. It was what is known as the ordinary commercial lease. The duration of the term was five years and as long thereafter as oil or gas might be produced. Only the commencement of a well or the payment of a $160-delay rental in lieu thereof, prior to the end of each of the primary years, would prevent the termination of the lease. After completion of the first well on January 28, 1938, producing three to four hundred barrels of oil per day, dissatisfaction was voiced by Wigley’s five daughters. As a result, Wigley, his daughters, their husbands, and petitioner executed a new instrument on March 3, 1938, reading in part as follows: “Know All Men By These Presents: That we, * * * [S. W. Wigley and the five daughters joined by their husbands] * * * for valuable consideration to us in hand paid by King Oil Company, receipt whereof is hereby acknowledged, and the further consideration of the agreements hereinafter contained on the part of King Oil Company to be kept and performed have Granted, Demised, Leased and let the 160 acres described in said lease of record in Vol. 345 at page 337 of said Deed Records in strict accordance with all of the terms and provisions of said original lease as modified by this agreement. “To Have And To Hold, said land unto the said King Oil Company, according to the terms of said original lease as modified by this agreement, and we each jointly and severally bind ourselves, our heirs, executors and administrators to Warrant and Forever defend title to said property and to save harmless King Oil Company, its successors and assigns, from any defect in title thereto, so that from and after delivery of this instrument no attack upon the validity of the lease hereby expressed, shall be made except upon failure of King Oil Company to observe the provisions of this instrument. “In consideration of the premises, King Oil Company agrees that it will reasonably begin and with due diligence prosecute the drilling of additional wells upon said 160 acres of land so that within two years from this date it will have drilled six additional wells on said 160 acres of land unless in the course of such drilling program a dry hole is completed to the present producing horizon. If such dry hole is drilled then the said King Oil Company, shall be relieved of further drilling thereafter until an additional well is necessary to off-set a commercially producing well on adjacent land. It is contemplated that the wells so to-drilled [sic] shall be drilled three on or before the expiration of the first year and the remaining three on or before the expiration of the second year. However, this agreement shall not relieve King Oil Company, its successors and assigns, from the obligation to use due diligence in off-setting wells on adjacent land within a reasonable time.” Petitioner paid each of the daughters $320 in connection with the execution of this instrument but paid nothing to S. W. Wigley. In 1939 petitioner drilled wells No. 4, No. 5, No. 6, and No. 7. This court has held that drilling costs of a well resulting by the term of a lease in the acquisition of oil property or a better and more expensive interest in it were capital investments, and that no part of its costs was an expense of the business. F. H. E. Oil Co. v. Commissioner, 5 Cir., 147 F.2d 1002; and Id., 5 Cir., 149 F.2d 238. See also Hardesty v. Commissioner, 5 Cir., 127 F.2d 843; Hunt v. Commissioner, 5 Cir., 135 F.2d 697. In the words of the Tax Court: “ * * * It is apparent * * * that each of the wells involved herein was drilled as part of the consideration for the assignment of the interests in the oil properties. In some of the leases the drilling was expressly stated to be part of the consideration. * * * In others the drilling was necessary to avoid termination of the lease in part or in whole.” The Wigley lease, while presenting a somewhat different contractual situation from that presented by the Waggoner leases, involves with respect to the issue before us the application of the same legal principle. Petitioner contends that the instrument which modified the original lease concerned development and did not concern the validity of the lease, but the modification instrument, after referring to the original lease, expressly recites: “ * * * certain questions have been raised with respect to the validity of said lease above described and it is the desire of all parties to remove all such questions in the interests that such lease may be properly and adequately developed and that therefrom there may result benefits to all parties flowing from such development and the settlement of all such questions.” The failure of Wigley, the father, to question the validity of the lease, his failure to attack petitioner’s title under the original lease, and the absence of a money consideration being paid to him for the execution of the subsequent instrument are all irrelevant. Petitioner’s signature on the modifying instrument was its assent to a new and different contract. The obligation assumed by petitioner to drill six wells was part of the consideration for the execution of the amending instrument; 'which reinforced the validity of the original lease. Since the obligation on petitioner necessitated drilling expenditures, those expenditures became a capital investment rather than an expense. Hunt v. Commissioner, 5 Cir., 135 F.2d 697, relied on by petitioner, held that where a lessee acquired one half of his interest free of any drilling obligation and one half subject to drilling obligation, he may charge one half of his intangible drilling costs off to expense. The drilling obligation assumed by petitioner in the amendment to the Wigley lease applied to the entire mineral interest and distinguishes the instant case from Hunt v. Commissioner. We find no fault with the decision of the Tax Court, and it is, therefore, affirmed. Petitioner’s principal office was in Wichita Falls, Texas. It was engaged in developing oil properties and producing oil. In taking this deduction petitioner followed its previous election. Petitioner has abandoned its claim with respect to the wells on the Crudup and Rathke leases, and we are only concerned with the wells on the remaining leases. Applicable statute and regulations: Internal Revenue Code: “Sec. 23 Deductions from gross income. “In computing the net income there shall be allowed as deductions: “(a) Expenses. “(1) In general. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered ; traveling expanses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity. * * * “(m) Depletion. In the case of mines, oil and gas wells, other natural deposits, and timber, a reasonable allowance for depletion and depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all eases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * “(n) Basis for depreciation and depletion. The basis upon which depiction, exhaustion, wear and tear, and obsolescence are to be allowed in respect of any property shall be as provided in section 114.” 26 U.S.C.A. Int.Rev.Code, § 23(a) (1), (m, n). Treasury Regulations 103, promulgated under the Internal Revenue Code: Sec. 19.23(m)-16 [as amended by T.D. 5276, 1943 Cum.Bull. 151]. Charges to capital and to expense in case of oil and gas wells — (a) Taxable years beginning prior to January 1, 1943. — The provisions of this subsection apply only to taxable years beginning prior to January 1, 1943. (1) Items chargeable to capital or to expense at taxpayer’s option: (i) Option with respect to intangible drilling and development costs in general: All expenditures for wages, fuel, repairs, hauling, supplies, etc., incident to and necessary for the drilling of wells and the preparation of wells for the production of oil or gas, may, at the option of the taxpayer, be deducted from gross income as an expense or charged to capital account. Snell expenditures have for convenience been termed intangible drilling and development costs. Examples of items to which this option applies are, all amounts paid for labor, fuel, repairs, hauling, and supplies, or any of them, which are used (A) in the drilling, shooting, and cleaning of wells; (B) in such clearing of ground, draining, road making, surveying, and geological work as are necessary in prejia-ration for the drilling of wells; and (O) in the construction of such derricks, tanks, pipe lines, and other physical structures as are necessary for the drilling of wells and the preparation of wells for the production of oil or gas. In general, this option applies only to expenditures for those drilling and developing items which in themselves do not have a salvage value. For the purpose of this option labor, fuel, repairs, hauling, supplies, etc., are not considered as having a salvage value, even though used in connection with the installation of physical property which has a salvage value. Drilling and development costs shall not be excepted from the option merely because they are incurred under a contract providing for the drilling of a well to an agreed depth, or depths, at an agreed price per foot or other unit of measurement. A11 three leases were executed by the W. T. Waggoner Estate, the first two to petitioner and the last to Edwin S. Smith, Jr., and was by him assigned to the petitioner. It contained the usual provisions as to royalties and delay rentals. A delay rental was paid at the end of the first year, and on February 12, 1939, petitioner began its No. 1 well and completed the same on March 18, 1939, as a good oil pro-dueer. One of the five producing wells drilled prior to 1939. The lessee paid $2400 cash consideration. In addition the lease contained the usual provisions of royalty, warranty, and assignment, Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations GREAT ATLANTIC & PACIFIC TEA CO., INC. v. COTTRELL, HEALTH OFFICER OF MISSISSIPPI No. 74-1148. Argued December 1, 1975 Decided February 25, 1976 Brennan, J., delivered the opinion of the Court, in which all Members joined except Stevens, J., who took no part in the consideration or decision of the case. Walter W. Christy argued the cause for appellant. On the brief was Samuel Lang. Heber Ladner, Jr., argued the cause for appellee. With him on the brief was A. F. Summer, Attorney General of Mississippi, and Hugo Newcomb, Assistant Attorney General. Mr. Justice Brennan delivered the opinion of the Court. Section 11 of Mississippi’s Regulation Governing the Production and Sale of Milk and Milk Products in Mississippi, promulgated by the Mississippi State Board of Health (1967), provides, among other things, that “[m]ilk and milk products from . . . [another State] may be sold in . . . Mississippi. . . provided . . . that the regulatory agency [of the other State that] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis.” The question presented by this case is whether Mississippi, consistently with the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution, may, pursuant to this regulation, constitutionally deny a Louisiana milk producer the right to sell in Mississippi milk satisfying Mississippi’s health standards solely because the State of Louisiana has not signed a reciprocity agreement with the State of Mississippi as required by the regulation. A three-judge District Court in the Southern District of Mississippi rejected appellant’s Commerce Clause challenge, holding that “[sjection 11 is within the permissible limits of state police powers even though it incidentally or indirectly involves or burdens interstate commerce.” 383 F. Supp. 569, 575 (1974). We noted probable jurisdiction of appellant’s appeal, 421 U. S. 961 (1975). We reverse. I Appellant, The Great Atlantic & Pacific Tea Co., Inc. (A&P), a Maryland corporation, owns and operates 38 outlets in Mississippi that engage in the retail sale of milk and milk products. A&P also operates at Kent-wood, La., a plant for the processing of raw milk into milk and milk products for delivery to its retail outlets. A&P invested over $1 million in the Kentwood processing facilities, intending that part of the dairy products produced at the facility would supply its retail outlets in Mississippi. However, A&P’s application on August 28, 1972, to the Mississippi State Board of Health for a permit to distribute the products from its Kentwood facility for sale in Mississippi was denied by the Board because A&P failed to submit the reciprocal agreement between Louisiana and Mississippi required by § 11. Appellant thereupon brought this action. Evidence was stipulated before the District Court which conclusively established that the milk produced at the Kentwood plant fully complied with the requirements of § 11 in all respects save the required reciprocity agreement. The Kentwood plant had received milk sanitation-compliance ratings in excess of 90% in all respects following each inspection by Louisiana officials. These sanitation-compliance ratings were published in the Sanitation Compliance and Enforcement Ratings of Interstate Milk Shippers, a list compiled by the Public Health Service and the Food and Drug Administration of the United States Department of Health, Education, and Welfare (HEW), which includes only processors receiving compliance ratings from state officials who have been certified by the Public Health Service. Further, the parties stipulated that the Supervisor of the Milk Control Program of the Mississippi State Board of Health testified, on the basis of an inspection by Louisiana officials of the Kentwood plant reported on an HEW form, that Kentwood milk would be acceptable in Mississippi as the Louisiana regulations were substantially equivalent to Mississippi’s within the meaning of §11. Thus only the lack of a reciprocity agreement between the two States prevented appellant from marketing its Kentwood milk at its Mississippi retail outlets. II Mississippi’s answer to appellant’s Commerce Clause challenge is that the reciprocity requirement of § 11 is a reasonable exercise of its police power over local affairs, designed to assure the distribution of healthful milk products to the people of its State. We begin our analysis by again emphasizing that “[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States.” McLeod v. J. E. Dilworth Co., 322 U. S. 327, 330 (1944). And at least since Cooley v. Board of Wardens, 12 How. 299 (1852), it has been clear that “the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. . . . [T]he Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States.” Freeman v. Hewit, 329 U. S. 249, 252 (1946). It is no less true, of course, that under our constitutional scheme the States retain “broad power” to legislate protection for their citizens in matters of local concern such as public health, H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 531-532 (1949), and that not every exercise of local power is invalid merely because it affects in some way the flow of commerce between the States. Freeman v. Hewit, supra, at 253; Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346, 351-352 (1939). Rather, in areas where activities of legitimate local concern overlap with the national interests expressed by the Commerce Clause — where local and national powers are concurrent— the Court in the absence of congressional guidance is called upon to make “delicate adjustment of the conflicting state and federal claims,” H. P. Hood & Sons, Inc. v. Du Mond, supra, at 553 (Black, J., dissenting), thereby attempting “the necessary accommodation between local needs and the overriding requirement of freedom for the national commerce.” Freeman v. Hewit, supra, at 253. In undertaking this task the Court, if it finds that a challenged exercise of local power serves to further a legitimate local interest but simultaneously burdens interstate commerce, is confronted with a problem of balance: “Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the 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. 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.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). Adjudication of Commerce Clause challenges to the validity of local milk regulations burdening interstate milk is not a novel experience for this Court. See, e. g., Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361 (1964); Dean Milk Co. v. Madison, 340 U. S. 349 (1951); H. P. Hood & Sons, Inc. v. Du Mond, supra; Milk Control Board v. Eisenberg Farm Products, supra; Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935). The District Court seems to have concluded that Dean Milk Co. v. Madison, supra, while especially pertinent to a decision upon the validity of the reciprocity provision of § 11, did not require the conclusion that the requirement rendered the section violative of the Commerce Clause. We disagree. Dean Milk involved a Madison, Wis., ordinance that forbade the sale of milk in the city unless it had been pasteurized and bottled at an approved plant located within five miles of the center of the city. Although agreeing that sanitary regulation of milk originating in remote areas is a “ 'matter . . . which may appropriately be regulated in the interest of the safety, health and well-being of local communities,'” 340 U. S., at 353, the Court held that the Madison ordinance could not withstand challenge under the Commerce Clause, “even in the exercise of [the city’s] unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.” Id., at 354. Inquiry whether adequate and less burdensome alternatives exist is, of course, important in discharge of the Court’s task of “accommodation” of conflicting local and national interests, since any “ ‘realistic’ judgment” whether a given state action “unreasonably” trespasses upon national interests must, of course, consider the “consequences to the state if its action were disallowed.” Dowling, Interstate Commerce and State Power, 27 Va. L. Rev. 1, 22 (1940). Dean Milk identified as adequate to serve local interests, and yet less burdensome to the flow of interstate commerce, the alternatives of either inspection of the distant plants by city officials, or reliance on milk ratings obtained by officials in localities having standards as high as those of Madison, the enforcement of which could be verified by reliance on the United States Public Health Service’s system of checking local ratings. This latter alternative reflected the recommendation of the United States Public Health Service based on § 11 of the Model Milk Ordinance proposed by the Service, Dean Milk, supra, at 355 n. 5, that the local “health officer approve milk or milk products from distant points without his inspection if they are produced and processed under regulations equivalent to those of this ordinance, and if the milk or milk products have been awarded by the State control agency a rating of 90 percent or more on the basis of the Public Health Service rating method.” The Illinois producer’s milk involved in Dean Milk was processed in plants inspected by the public health authorities in Chicago on the basis of the Public Health Service rating method. The District Court in the instant case acknowledged that “[i]nterestingly enough Section 11 of the Mississippi regulation, but for the reciprocal clause, is identical in every material aspect to Section 11 of the U. S. Pvblic Health Service Ordinance” discussed in Dean Milk. 383 F. Supp., at 574. Accordingly, the District Court concluded that § 11 was “free of any constitutional infirmity,” “insofar as it follows Section 11 of the U. S. Public Health Service Milk Ordinance.” Id., at 575. The District Court held further that the reciprocity clause of Mississippi’s § 11 — not found in HEW’s proposed Model Milk Ordinance § 11 — did not constitute a sufficient burden on interstate commerce to violate the Commerce Clause. Mississippi, said the District Court, may constitutionally “enforce its own standards, either through inspections at the source of the processed milk, although such may require o’’t-of-state inspections, or through reciprocal agreements . . .” and “[a]s long as Mississippi mutually exchanges standards of inspection with other states, there can be no burden on interstate trade.” 383 F. Supp., at 575. Further, said the District Court, “Mississippi adopted the reciprocity clause to avoid the expense of out-of-state inspections,” id., at 576, and offers reciprocity to all States without discrimination. The fallacy in the District Court’s reasoning is that it attached insufficient significance to the interference effected by the clause upon the national interest in freedom for the national commerce, and attached too great significance to the state interests purported to be served by the clause. Although not in terms an absolute and universal bar to sales of out-of-state milk, which was the effect of the Madison ordinance invalidated in Dean Milk, the barrier of the reciprocity clause to sales of out-of-state milk in Mississippi has in this case also “in practical effect exclude[d] from distribution in [Mississippi] wholesome milk produced ... in [Louisiana].” 340 U. S., at 354. Only state interests of substantial importance can save § 11 in the face of that devastating effect upon the free flow of interstate milk. Mississippi’s contention that the reciprocity clause serves its vital interests in maintaining the State’s health standards borders on the frivolous. The clause clearly does not do so in the sense of furthering Mississippi’s established milk quality standards. For, according to appellee, “§ 11 covenants that Mississippi will do the inspections, will certify them, and will accept a standard below that applicable to domestic producers if the forwarding state will do the same.” Brief for'Appellee 9. Thus, even if Louisiana’s standards were lower than Mississippi’s, the clause permits Louisiana milk to be admitted to Mississippi if Louisiana enters into á reciprocity agreement. The reciprocity clause thus disserves rather than promotes any higher Mississippi milk quality standards. Therefore this is a case where the “burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S., at 142. Mississippi next argues that the reciprocity clause somehow enables Mississippi to assure itself that the reciprocating State’s (here Louisiana’s) health standards are the “substantial equivalent” of Mississippi’s. But even if this were true, and the premise may be disputed, there are means adequate to serve this interest that are substantially less burdensome on commerce, and, therefore, Dean Milk teaches that the burden of the mandatory reciprocity clause cannot be justified in view of the character of the local interest and these available methods of protecting it. In the absence of adequate assurance that the standards of a sister State, either as constituted or as applied, are substantially equivalent to its own, Mississippi has the obvious alternative of applying its own standards of inspection to shipments of milk from a nonreciprocating State. Dean Milk, 340 U. S., at 355, expressly supported the adequacy of this alternative: “[S]uch inspection is readily open to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors.” Cf. Evansville-Vanderburgh Airport Au thority District v. Delta Airlines, Inc., 405 U. S. 707 (1972). Ill Mississippi argues that apart from the putative health-related interests served by the clause, the reciprocity requirement is in effect a free-trade provision, advancing the identical national interest that is served by the Commerce Clause. The argument is two-pronged. First, Mississippi argues that the reciprocity requirement serves to help eliminate “hypertechnical” inspection standards that vary between different States. Such hypertechnical standards are said to burden commerce by requiring costly duplicative or out-of-state inspection in instances where, for truly health-related purposes, the standards of the different States are “substantially equivalent.” The Court has recognized that mutually beneficial objectives may be promoted by voluntary reciprocity agreements, and that the existence of such an agreement between two or more States is not a per se violation of the Commerce Clause of which citizens of nonreciprocating States who do not receive the benefits conferred by the agreement may complain. See Kane v. New Jersey, 242 U. S. 160, 167-168 (1916); cf. Bode v. Barrett, 344 U. S. 583 (1953). But we have not held that acceptance of offered reciprocity is required from other States, see Kane v. New Jersey, supra, at 168, or that a State may threaten complete isolation as the alternative to acceptance of its offer of reciprocity. Mississippi may offer reciprocity to States with substantially equivalent health standards, and insist on enforcement of its own, somewhat different, standards as the alternative. But Mississippi may not use the threat of economic isolation as a weapon to force sister States to enter into even a desirable reciprocity agreement. The second prong of appellee’s argument that the reciprocity requirement promotes trade between the States draws upon Mississippi’s allegations that Louisiana is itself violating the Commerce Clause by refusing to admit milk produced in Mississippi. Mississippi asserts that Louisiana has refused reciprocity with Mississippi in bad faith, and in fact has erected economic barriers to the sale of Mississippi milk in Louisiana under the guise of health and inspection regulations. Hence, the reciprocity agreement, it is argued, is a legitimate means by which Mississippi may seek to gain access to Louisiana markets for its own producers as a condition to allowing Louisiana milk to be sold in Mississippi. We cannot agree. First, to the extent, if any, that Louisiana is unconstitutionally burdening the flow of milk in interstate commerce by erecting and enforcing economic trade barriers to protect its own producers from competition under the guise of health regulations, the Commerce Clause itself creates the necessary reciprocity: Mississippi and its producers may pursue their constitutional remedy by suit in state or federal court challenging Louisiana’s actions as violative of the Commerce Clause. Second, to the extent that Louisiana is legitimately exercising its local powers in the interest of the health of its citizens by refusing reciprocity and consequently the admission of milk deemed in good faith by state officials to be of insufficient quality, Mississippi is not privileged under the Commerce Clause to force its own judgments as to an adequate level of milk sanitation on Louisiana at the pain of an absolute ban on the interstate flow of commerce in milk. However available such methods in an international system of trade between wholly sovereign nation states, they may not constitutionally be employed by the States that constitute the common market created by the Framers of the Constitution. To allow Mississippi to insist that a sister State either sign a reciprocal agreement acceptable to Mississippi or else be absolutely foreclosed from exporting its products to Mississippi would plainly “invite a multiplication of preferential trade areas destructive of the very purpose of the Commerce Clause.” Dean Milk, 340 U. S., at 356. No “parochial legislative polic[y],” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 538, could be more precisely calculated to open “the door ... to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S., at 522. “The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Id., at 523. The mandatory reciprocity provision of § 11, insofar as justified by the State as an economic measure, is “precisely the kind of hindrance to the introduction of milk from other States . . . condemned as an ‘unreasonable clog upon the mobility of commerce. ... [It is] hostile in conception as well as burdensome in result.’ ” Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S., at 377. Accordingly, we hold that the mandatory character of the reciprocity requirement of § 11 unduly burdens the free flow of interstate commerce and cannot be justified as a permissible exercise of any state power. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Stevens took no part in the consideration or decision of this case. Section 11 provides in full text: “Milk and milk products from points beyond the limits of routine inspection of the state of Mississippi or its police jurisdiction, may be sold in the state of Mississippi or its police jurisdiction, provided they are produced, pasteurized, and labeled under regulations which are substantially equivalent to this' Regulation and have been awarded an acceptable milk sanitation compliance rating of 90 percent or above made by a state milk sanitation rating officer certified by the U. S. Public Health Service, and Provided further, that the regulatory agency who [sic] has jurisdiction accepts Grade A milk and milk products produced and processed in Mississippi on a reciprocal basis. The health authority is authorized to require and conduct laboratory analysis and investigations to determine if the milk and milk products are in compliance with this Regulation.” Record 102. The Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, provides: “The Congress shall have power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Appellant also alleged a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. In view of our conclusion we have no occasion to address that claim. A&P attempted but failed to obtain the required reciprocity agreement from the Louisiana health authorities. It was informed by Louisiana health officials that Louisiana had not entered into a reciprocity agreement with any State, that in the opinion of Louisiana officials processed milk from Mississippi did not meet Louisiana health standards, and that Mississippi-processed milk from plants that met Louisiana standards would be admitted for sale in Louisiana. Record 15. Appellee makes no contention that there are alternative means by which appellant’s milk may be judged qualified under Mississippi standards and thereby admitted for sale in the State. Indeed, appellee states that without reciprocity, milk from the Kentwood plant must be subjected to on-site inspection according to Mississippi health standards, and that Mississippi currently makes no provision for out-of-state inspection by Mississippi officials. Brief for Appellee 15-16, n. 1. Adjudication entails “emphasis upon the concrete elements of the situation that concerns both state and national interests. The particularities of a local statute touch its special aims and the scope of their fulfillment, the difficulties which it seeks to adjust, the price at which it does so. . . . [P]raetical considerations, however screened by doctrine, underlie resolution of conflicts between state and national power.” F. Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 33-34 (1937). “[I]t seems clear that those interferences [with interstate commerce] not deemed forbidden are to be sustained . . . because a consideration of all the facts and circumstances, such as the nature of the regulation, its function, the character of the business involved and the actual effect on the flow of commerce, lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines.” Di Santo v. Pennsylvania, 273 U. S. 34, 44 (1927) (Stone, J., dissenting). The parties stipulated in the District Court that the net annual cost to A&P incurred by its inability to use the product of its Kent-wood facility and its consequent reliance on alternative sources of supply was $195,700. “If Louisiana will not give trust and reliance to Mississippi’s conduct of the inspections, then Mississippi is loath to accept the same Louisiana procedures, out of a regard for the health and welfare of her own citizens.” Brief for Appellee 11. A sample reciprocity agreement acceptable to Mississippi is the following: “AN ACCEPTABLE AGREEMENT TO MISSISSIPPI STATE BOARD OF HEALTH REGARDING RECIPROCITY IN THE MOVEMENT OF GRADE A MILK AND MILK PRODUCTS IN INTERSTATE SHIPMENT “1. Each state shall be responsible for inspecting, sampling, and enforcing its regulations that apply to the dairies and milk plants located in its respective state, provided each state’s regulation is substantially equivalent. “2. The appropriate state regulatory agency shall certify to the receiving state agency that the dairies and plants involved in interstate shipment hold a valid Grade A permit from said agency. “3. Milk and milk products received into each state shall meet the chemical and bacteriological standards, labeling and delivery vehicle requirements of the receiving state. “4. Public health sanitation ratings shall be made by certified rating officials of the respective states of any milk supply involved in interstate shipment. The ratings shall be submitted to the FDA-PHS to be included and maintained on the Interstate Milk Shippers List and published by the FDA-PHS so that they can make spot check ratings of the supplies involved to determine if satisfactory sanitation surveillance is being carried out by the respective state. All sanitation ratings shall be 90% in compliance or above in order to be acceptable to the respective states. “5. The regulatory agencies of each state shall sign reciprocity agreements containing the above stipulations.” On this record, we are not presented with and need not decide the question of the constitutionality under the Commerce Clause of a State's insistence on reinspection of milk originating in a foreign State where that insistence is not prompted by a health-related need to assure adequate standards but rather is prompted solely as a retaliatory measure because the foreign State refuses to accept the receiving State’s standards as adequate. Mississippi’s regulations call for inspection of “each dairy farm, milk hauler, milk plant, receiving station, and transfer station whose milk or milk products are intended for consumption within the State of Mississippi” as a condition to the issuance of a permit, and for periodic inspection thereafter. Miss. Reg. § 5, Record 77. Although appellant’s Kentwood plant is, of course, located outside Mississippi and would require out-of-state inspection by Mississippi officials, only six of 105 dairy farms from which A&P purchases raw milk are located outside Mississippi. Plaintiff’s Exhibit 1, and Exhibit A. Appellant represents that it has already offered to pay the reasonable expenses of required out-of-state inspection, Brief for Appellant 7, although evidence of that offer does not appear in the record. “[W]e say this regulation is wiser and more productive for interstate commerce through all the States than having these picayune problems of how many square feet of floor, space is in the milk parlor, or what the temperature of the milk is when it goes to the cooling truck.” Tr. of Oral Arg. 20. A&P agrees that reciprocity among States is a “laudable goal. Reciprocity, by eliminating hyper-technical standards peculiar to one state, may aid the free flow of milk.” Jurisdictional Statement 9. We are not called upon to decide in this case whether or at what point the diversionary effects upon trade occasioned by a given reciprocity agreement (even though voluntary and nondiscriminatory) between some but not all States might be such as to constitute an impermissible burdening of the national interests embodied in the Commerce Clause, or the Compact Clause. Cf. Bode v. Barrett, 344 U. S., at 586; Wharton v. Wise, 153 U. S. 155, 171 (1894). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. DORSEY v. PEAK, Superintendent of the Washington Asylum and Jail. Court of Appeals of District of Columbia. Submitted February 7, 1928. Decided March 5, 1928. No. 4650. Automobiles <§=>359 — Sixty-day jail sentence on default in payment of fine for changing name on motor vehicle operator’s permit held authorized (Traffic Act 1925, §§ 4, 6 [b]; 43 St. 1119). In prosecution for changing name of .licensee on motor vehicle operator’s permit, sentence to pay fine of $275 and in default to be committed to jail for 60 days held not in excess of court’s jurisdiction, under Traffic Act 1925, §§ 4, 6 (b), 43 Stat. 1119 notwithstanding regulation promulgated under statute limited imprisonment without fine, or in addition to fine, to 10 days, in view of sections 7, 7 (e), and 8. Appeal from the Supreme Court of the District of Columbia. Habeas corpus proceeding by Theodore R. Dorsey against William L. Peak, Superintendent of the Washington Asylum and Jail. Prom a judgment dismissing the petition, petitioner appeals. Affirmed. C. F. Johnson and J. S. Phelan, both of Washington, D. C., for appellant. W. W. Bride and E. W. Thomas, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, ROBB, Associate Justice, and BLAND, Judge of United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from a judgment in the Supreme Court of the District dismissing a petition for habeas corpus. Dorsey, petitioner below, appellant here, pleaded guilty in the police court of the District to a charge of changing the name of a licensee appearing on a motor vehicle operator’s permit, whereupon he was adjudged guilty and sentenced to pay a fine of $275, and in default to be committed to the Washington Asylum and Jail for 60 days. He failed to pay the fine, and was committed. It is the contention of appellant that, under the provisions of the Traffic Act of 1925 (43 Stat. 1119), the sentence imposed was in excess of the jurisdiction of the court. That is the sole question involved in this appeal. See Posey v. Zinkham, 47 App. D. C. 293; Shore v. Splain, 49 App. D. C. 6, 258 F. 150. Under section 6 (b) of the Traffic Act (43 Stat. 1121) there is a grant of authority “to make reasonable regulations with respect to * • * the issuance and revocation of operators’ permits, and such other regulations with respect to the control of traffic in the District not in conflict with any law of the United States as are deemed advisable, which regulations shall remain in force until revoked by the director with the approval of the commissioners,” and to prescribe “reasonable penalties of fine, or imprisonment not to exceed ten days in lieu of or in addition to any fine, for the violation of any such regulation.” In pursuance of this grant of authority, there was promulgated the following regulation: “Article 6, Section 7, Operators’ Permits. (e) Any person who obtains or attempts to obtain a motor vehicle operator’s permit by misrepresentation, or who permits a motor vehicle operator’s permit to be used by any person other than the one to whom issued, or who changes the name of the licensee appearing on any such permit, or who makes any other alteration on such permit, shall be fined not less than $25, nor more than $300, or imprisonment not to exceed 10 days.” Section 4 of the Traffic Act (43 Stat. 1120) provides, inter alia, that “in all eases' where the said court [police court] shall impose a fine it may, in default of the payment of the fine imposed, commit the defendant for such a term as the court thinks right and proper, not to exceed one year.” It is appellant’s contention that his commitment was “in lieu of or in addition to” his fine, and therefore that xuxder the provisions of section 6 (b) the police court was without authority to sentence him to imprisonment in excess of 10 days. We are unable to accept this view. Under the express provisions of section 4, already quoted, the court was granted authority to commit a defendant for a term not to exceed one year “in default of the payment of the fine imposed.” It is plain that the statute distinguishes between the,failure of a defendant to pay his fine (that is, a default in its payment) and a case where he has been sentenced “in lieu of or in addition to any fine.” In other wox-ds, whexe a defendant is sentenced to imprisonment without the option of paying a fine (that is, in lieu of the fine), he may not be sentenced in excess of 10 days, or, if fined and also sentenced to imprisonment, the additional sentence of imprisonment may not be in excess of ten days. Other sections, of the Traffic Act add cogency to this view. Thus, under section 7 (43 Stat. 1121), relating to “Operators’ Permits,” each operator’s permit must state the name and address of the holder, contain his signature, and space for the notation of convictions for violations of the traffic laws. The holder of such a permit is required to have it in his immediate possession when operating a motor vehicle and exhibit the same to any police officer when demand is made therefor. Failure to comply with this particular provision is made an offense. Section 7 (e) reads as follows: “No individual shall operate a motor vehicle in the District, except as provided in section 8, without having first obtained an operator’s permit issued under the provisions of this act. Any individual violating any provision of this subdivision shall, upon conviction thereof, be fined not more than $500 or imprisoned for not more than one year, or both.” It is apparent that any one operating a motor vehicle in virtue of a fictitious permit would be liable to the penalties imposed by this subdivision; that is, to a fine of not more than $500 or imprisonment for not more than one year, or both. The regulations in question, therefore, supplemented the express provisions of the statute and are reasonable. See Smallwood v. District of Columbia, 57 App. D. C. 58, 17 F.(2d) 210; District of Columbia v. Wheeler, 57 App. D. C. 106, 17 F.(2d) 953. Judgment affirmed, with costs. 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_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. McNABB v. VIRGINIAN RY. CO. No. 3226. ■ Circuit Court of Appeals, Fourth Circuit. Jan. 12, 1932. Affirmed. A. A. Lilly, of Charleston, W. Va. (Lilly, Lilly & Warwick and It. G. Lilly, all of Charleston, W. Va., on the brief), for appellant. John R. Pendleton, of Princeton, W. Va. (Harry C. Ellett, of Princeton, W. Va., on the brief), for appellee. Before PARKER, NORTHCOTT and SOPER, Circuit Judges. PER CURIAM. Willie McNabb, appellant, brought this action of trespass on the ease against the Virginian Railway Company, a corporation, appellee, and against H. Clay Jacobs and R. C. Lambert, in the circuit court of Payette county, W. Va. The cause was subsequently removed to the District Court of the United States for the Southern District of West Virginia) and the defendants H. Clay Jacobs and R. C. Lambert were dismissed as defendants, and, the defendant, Virginian Railway Company, having pleaded not guilty, the issue was tried before a jury in May, 1931. After the conclusion of the evidence for both the plaintiff and the defendant, the court, upon motion of the defendant, directed the jury to find for the defendant, which was accordingly done. The plaintiff moved to set aside the verdict of the jury, and to grant him a new'trial, which motion the court overruled. Prom that judgment this appeal is taken. The appellant, who was plaintiff below, was struck by a locomotive of the railway company at a road crossing near Deep-water, Payette county, W. Va. There is evidence on behalf of the railway company that the headlight was burning on the locomotive and that the crossing signals were duly given. Plaintiff and a witness testified that the light was not burning. Assuming, that the evidence was sufficient do carry the ease to the jury on the issue of negligence, we think that plaintiff was unquestionably barred of recovery by his contributory negligence and that verdict was properly directed against him. We think it clear in the light of the evidence that, if plaintiff had looked before stepping in front of the approaching locomotive, he could unquestionably have seen it in timé to have avoided being struck, and his injury is therefore to be attributed to his own negligence in stepping in front of the locomotive without taking' proper precautions. A number of witnesseá on both sides) who had no better view than the plaintiff; testified that they saw the approaching locomotive. In view of the physical conditions disclosed by the other evidence, his testimony that he looked but failed to see>-the locomotive approaching is without probative force and entirely insufficient to form the basis of a verdict in his behalf. Had the jury returned a verdict for the plaintiff, it would have been the duty of the trial judge in the exercise of a sound judicial discretion to set it aside. It was therefore proper for him to direct a verdict for the defendant. South Carolina Asparagus Growers’ Association v. Southern Railway Co. (C. C. A.) 46 F.(2d) 452, 453, and cases there cited; Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; Hetzel v. Kemper, 102 W. Va. 567, 135 S. E. 667. This rule applies not only in cases where the evidence is undisputed, but also in eases where the evidence is só conclusive in character that reasonable men would not reach different conclusions in regard thereto. In Ellerson v. Grove, 44 F.(2d) 493, 496, this court holds as follows: “The general rule as to direction of verdicts is set out in the case of Marion County Commissioners v. Clark, 94 U. S. 284, 24 L. Ed. 59, as follows: ‘Decided cases may be found where it is held that, if there is a scintilla, of evidence in support of a ease, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule; to wit, that, before the evidence is left to the jury, there is or may be in every ease a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.’ * * * “See also Coughran v. Bigelow, 164 U. S. 307, 17 S. Ct. 117, 41 L. Ed. 442; Patton v. Southern Ry. Co. (C. C. A.) Ill P. 712; Woodward et al. v. Chicago, M. & St. P. Ry. Co. (C. C. A.) 145 P. 577. In the last-mentioned ease it is said that it is the duty of a court to direct a verdict at the close of the evidence in two classes of cases: (1) That class in which the evidence is' undisputed; and (2) that class in which the evidence is conflicting but is of so conclusive a character that the court in the exercise of a sound judicial discretion will set aside the verdict in opposition to it. See also numerous cases cited in that opinion.” The judgment of the court below-is accordingly 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_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations FALL RIVER DYEING & FINISHING CORP. v. NATIONAL LABOR RELATIONS BOARD No. 85-1208. Argued March 2, 1987 Decided June 1, 1987 Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Stevens, and Scalia, JJ., joined, and in Parts I and III of which White, J., joined. Powell, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 54. Ira Drogin argued the cause and filed briefs for petitioner. Deputy Solicitor General Cohen argued the cause for respondent. With him on the brief were Solicitor General Fried, Christopher J. Wright, Norton J. Come, Linda Sher, and Robert C. Bell, Jr. Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Peter G. Nash and Stephen A. Bokat; and for the Legal Foundation of America by Jean Fleming Powers and David Crump. Marsha S. Berzon, D. Bruce Shine, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance. Justice Blackmun delivered the opinion of the Court. In this case we are confronted with the issue whether the National Labor Relations Board’s decision is consistent with NLRB v. Burns International Security Services, Inc., 406 U. S. 272 (1972). In Bums, this Court ruled that the new employer, succeeding to the business of another, had an obligation to bargain with the union representing the predecessor’s employees. Id., at 278-279. We first must decide whether Burns is limited to a situation where the union only recently was certified before the transition in employers, or whether that decision also applies where the union is entitled to a presumption of majority support. Our inquiry then proceeds to three questions that concern rules the Labor Board has developed in the successorship context. First, we must determine whether there is substantial record evidence to support the Board’s conclusion that petitioner was a “successor” to Sterlingwale Corp., its business predecessor. Second, we must decide whether the Board’s “substantial and representative complement” rule, designed to identify the date when a successor’s obligation to bargain with the predecessor’s employees’ union arises, is consistent with Burns, is reasonable, and was applied properly in this case. Finally, we must examine the Board’s “continuing demand” principle to the effect that, if a union has presented to a successor a premature demand for bargaining, this demand continues in effect until the successor acquires the “substantial and representative complement” of employees that triggers its obligation to bargain. I For over 30 years before 1982, Sterlingwale operated a textile dyeing and finishing plant in Fall River, Mass. Its business consisted basically of two types of dyeing, called, respectively, “converting” and “commission.” Under the converting process, which in 1981 accounted for 60% to 70% of its business, see App. 149, Sterlingwale bought unfinished fabrics for its own account, dyed and finished them, and then sold them to apparel manufacturers. Id., at 123. In commission dyeing, which accounted for the remainder of its business, Sterlingwale dyed and finished fabrics owned by customers according to their specifications. Id., at 124. The financing and marketing aspects of converting and commission dyeing are different. Converting requires capital to purchase fabrics and a sales force to promote the finished products. Id., at 123. The production process, however, is the same for both converting and commission dyeing. Id., at 98. In the late 1970’s the textile-dyeing business, including Sterlingwale’s, began to suffer from adverse economic conditions and foreign competition. After 1979, business at Sterlingwale took a serious turn for the worse because of the loss of its export market, id., at 127-128, and the company reduced the number of its employees, id., at 192-195. Finally, in February 1982, Sterlingwale laid off all its production employees, primarily because it no longer had the capital to continue the converting business. Id., at 77-78, 104,130-132. It retained a skeleton crew of workers and supervisors to ship out the goods remaining on order and to maintain the corporation’s building and machinery. Id., at 147-148. In the months following the layoff, Leonard Ansin, Sterlingwale’s president, liquidated the inventory of the corporation and, at the same time, looked for a business partner with whom he could “resurrect the business.” Id., at 114-115, 146-147. Ansin felt that he owed it to the community and to the employees to keep Sterlingwale in operation. Id., at 103-104. For almost as long as Sterlingwale had been in existence, its production and maintenance employees had been represented by the United Textile Workers of America, AFL-CIO, Local 292 (Union). Id., at 60-61. The most recent collective-bargaining agreement before Sterlingwale’s demise had been negotiated in 1978 and was due to expire in 1981. By an agreement dated October 1980, however, in response to the financial difficulties suffered by Sterlingwale, the Union agreed to amend the 1978 agreement to extend its expiration date by one year, until April 1, 1982, without any wage increase and with an agreement to improve labor productivity. Id., at 353-355. In the months following the final February 1982 layoff, the Union met with company officials over problems involving this job action, and, in particular, Sterlingwale’s failure to pay premiums on group-health insurance. Id., at 66-67, 86,131. In addition, during meetings with Ansin, Union officials told him of their concern with Sterlingwale’s future and their interest in helping to keep the company operating or in meeting with prospective buyers. Id., at 67-68, 86, 146-147. In late summer 1982, however, Sterlingwale finally went out of business. It made an assignment for the benefit of its creditors, id., at 115,147, primarily Ansin’s mother, who was an officer of the corporation and holder of a first mortgage on most of Sterlingwale’s real property, id., at 113, and the Massachusetts Capital Resource Corporation (MCRC), which held a security interest on Sterlingwale’s machinery and equipment, id., at 113-114. Ansin also hired a professional liquidator to dispose of the company’s remaining assets, mostly its inventory, at auction. Id., at 115. During this same period, a former Sterlingwale employee and officer, Herbert Chace, and Arthur Friedman, president of one of Sterlingwale’s major customers, Marcamy Sales Corporation (Marcamy), formed petitioner Fall River Dyeing & Finishing Corp. Chace, who had resigned from Ster-lingwale in February 1982, had worked there for 27 years, had been vice president in charge of sales at the time of his departure, and had participated in collective bargaining with the Union during his tenure at Sterlingwale. Id., at 189, 232. Chace and Friedman formed petitioner with the intention of engaging strictly in the commission-dyeing business and of taking advantage of the availability of Sterlingwale’s assets and workforce. Id., at203-204, 223-224. Accordingly, Friedman had Marcamy acquire from MCRC and Ansin’s mother Sterlingwale’s plant, real property, and equipment, id., at 238-272, and convey them to petitioner, id., at 278-289. Petitioner also obtained some of Sterlingwale’s remaining inventory at the liquidator’s auction. Id., at 200-202,290-293. Chace became petitioner’s vice president in charge of operations and Friedman became its president. Id., at 190, 232. In September 1982, petitioner began operating out of Sterlingwale’s former facilities and began hiring employees. Id., at 206-207. It advertised for workers and supervisors in a local newspaper, id., at 197-198, and Chace personally got in touch with several prospective supervisors, id., at 197. Petitioner hired 12 supervisors, of whom 8 had been supervisors with Sterlingwale and 3 had been production employees there. Id., at 196, 220-222. In its hiring decisions for production employees, petitioner took into consideration recommendations from these supervisors and a prospective employee’s former employment with Sterlingwale. Id., at 223-224. Petitioner’s initial hiring goal was to attain one full shift of workers, which meant from 55 to 60 employees. Id., at 208. Petitioner planned to “see how business would be” after this initial goal had been met and, if business permitted, to expand to two shifts. Ibid. The employees who were hired first spent approximately four to six weeks in start-up operations and an additional month in experimental production. Id., at 156-157, 207, 226-227. By letter dated October 19, 1982, the Union requested petitioner to recognize it as the bargaining agent for petitioner’s employees and to begin collective bargaining. Id., at 360. Petitioner refused the request, stating that, in its view, the request had “no legal basis.” Id., at 362. At that time, 18 of petitioner’s 21 employees were former employees of Sterlingwale. See 272 N. L. R. B. 839, 840 (1984). By November of that year, petitioner had employees in a complete range of jobs, had its production process in operation, and was handling customer orders, App. 225-226; by mid-January 1983, it had attained its initial goal of one shift of workers, id., at 225, 227. Of the 55 workers in this initial shift, a number that represented over half the workers petitioner would eventually hire, 36 were former Sterlingwale employees. Tr. of Oral Arg. 28. Petitioner continued to expand its work force, and by mid-April 1983, it had reached two full shifts. For the first time, ex-Sterlingwale employees were in the minority but just barely so (52 or 53 out of 107 employees). App. 294-302; Tr. of Oral Arg. 28. Although petitioner engaged exclusively in commission dyeing, the employees experienced the same conditions they had when they were working for Sterlingwale. The production process was unchanged and the employees worked on the same machines, in the same building, with the same job classifications, under virtually the same supervisors. App. 152-156, 205-206. Over half the volume of petitioner’s business came from former Sterlingwale customers, and, in particular, Marcamy. Id., at 314-316. On November 1, 1982, the Union filed an unfair labor practice charge with the Board, alleging that in its refusal to bargain petitioner had violated §§ 8(a)(1) and (5) of the National Labor Relations Act (NLRA), 49 Stat. 452, as amended, 29 U. S. C. §§ 158(a)(1) and (5). After a hearing, the Administrative Law Judge (ALJ) decided that, on the facts of the case, petitioner was a successor to Sterlingwale. 272 N. L. R. B., at 840. He observed that petitioner therefore would have an obligation to bargain with the Union if the majority of petitioner’s employees were former employees of Sterlingwale. He noted that the proper date for making this determination was not mid-April, when petitioner first had two shifts working, but mid-January, when petitioner had attained a “representative complement” of employees. Ibid. The ALJ acknowledged that a demand for bargaining from the Union was necessary to trigger petitioner’s obligation to bargain, but noted that the Union’s demand of October 1982, although premature, was “of a continuing nature.” Ibid. Thus, in the view of the ALJ, petitioner’s duty to bargain arose in mid-January because former Sterlingwale employees then were in the majority and because the Union’s October demand was still in effect. Petitioner thus committed an unfair labor practice in refusing to bargain. In a brief decision and order, the Board, with one member dissenting, affirmed this decision. Id., at 839. The Court of Appeals for the First Circuit, also by a divided vote, enforced the order. 775 F. 2d 425 (1985). The court first found, id., at 428-430, that the Board’s determination that petitioner was Sterlingwale’s successor was consistent with Burns and was “supported by substantial evidence in the record.” 775 F. 2d, at 430. The court observed: “The differences between [petitioner’s] business and Sterling-wale’s are not sufficiently significant to require a finding that the continuity of the enterprise, viewed from the employees’ standpoint, was broken.” Ibid. The court then noted that the Board’s longstanding “substantial and representative complement” standard, id., at 431, which the ALJ applied in this case, is an attempt to establish a method for determining when a successor has to bargain with the predecessor’s union in a situation where, at the moment of the transition between the old and new enterprises, it is not clear when the new employer will reach a “full complement of employees.” Id., at 430-431. According to the court, the Board’s determination that petitioner had “employed a substantial and representative complement of its workforce in mid-January” was reasonable. Id., at 431. Finally, the court found that the Board’s rule treating a premature union demand for bargaining as a continuing demand also was reasonable and “practical” and entitled to deference. . Id., at 432-433. Because of the importance of the successorship issue in labor law, and because of our interest in the rules developed by the Board for successorship cases, we granted certiorari. 476 U. S. 1139 (1986). II Fifteen years ago in NLRB v. Burns International Security Services, Inc., 406 U. S. 272 (1972), this Court first dealt with the issue of a successor employer’s obligation to bargain with a union that had represented the employees of its predecessor. In Burns, about four months before the employer transition, the security-guard employees of Wackenhut Corp. had chosen a particular union as their bargaining representative and that union had negotiated a collective-bargaining agreement with Wackenhut. Wackenhut, however, lost its service contract on certain airport property to Burns. Burns proceeded to hire 27 of the Wackenhut guards for its 42-guard operation at the airport. Burns told its guards that, as a condition of their employment, they must join the union with which Burns already had collective-bargaining agreements at other locations. When the union that had represented the Wackenhut employees brought unfair labor practice charges against Burns, this Court agreed with the Board’s determination that Burns had an obligation to bargain with this union. We observed: “In an election held but a few months before, the union had been designated bargaining agent for the employees in the unit and a majority of these employees had been hired by Burns for work in the identical unit. It is undisputed that Burns knew all the relevant facts in this regard and was aware of the certification and of the existence of a collective-bargaining contract. In these circumstances, it was not unreasonable for the Board to conclude that the union certified to represent all employees in the unit still represented a majority of the employees and that Burns could not reasonably have entertained a good-faith doubt about that fact. Burns’ obligation to bargain with the union over terms and conditions of employment stemmed from its hiring of Wack-enhut’s employees and from the recent election and Board certification.” Id., at 278-279. Although our reasoning in Burns was tied to the facts presented there, see id., at 274, we suggested that our analysis would be equally applicable even if a union with which a successor had to bargain had not been certified just before the transition in employers. We cited with approval, id., at 279 and 281, Board and Court of Appeals decisions where it “ha[d] been consistently held that a mere change of employers or of ownership in the employing industry is not such an ‘unusual circumstance’ as to affect the force of the Board’s certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer.” Id., at 279. Several of these cases involved successorship situations where the union in question had not been certified only a short time before the transition date. See, e. g., NLRB v. Auto Ventshade, Inc., 276 F. 2d 303, 305 (CA5 1960); Tom-A-Hawk Transit, Inc. v. NLRB, 419 F. 2d 1025, 1026 (CA7 1969). Moreover, in defining “the force of the Board’s certification within the normal operative period,” 406 U. S., at 279, we referred in Burns to two presumptions regarding a union’s majority status following certification. See id., at 279, n. 3. First, after a union has been certified by the Board as a bargaining-unit representative, it usually is entitled to a conclusive presumption of majority status for one year following the certification. See ibid., citing Brooks v. NLRB, 348 U. S. 96, 98-99 (1964); see also 29 U. S. C. § 159(e)(3) (“No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held”). Second, after this period, the union is entitled to a rebuttable presumption of majority support. 406 U. S., at 279, n. 3, citing Celanese Corp. of America, 95 N. L. R. B. 664, 672 (1951). These presumptions are based not so much on an absolute certainty that the union’s majority status will not erode following certification, as on a particular policy decision. The overriding policy of the NLRA is “industrial peace. ” Brooks v. NLRB, 348 U. S., at 103. . The presumptions of majority support further this policy by “promoting] stability in collective-bargaining relationships, without impairing the free choice of employees.” Terrell Machine Co., 173 N. L. R. B. 1480 (1969), enf’d, 427 F. 2d 1088 (CA4), cert. denied, 398 U. S. 929 (1970). In essence, they enable a union to concentrate on obtaining and fairly administering a collective-bargaining agreement without worrying that, unless it produces immediate results, it will lose majority support and will be decertified. See Brooks v. NLRB, 348 U. S., at 100. The presumptions also remove any temptation on the part of the employer to avoid good-faith bargaining in the hope that, by delaying, it will undermine the union’s support among the employees. See ibid.; see also R. Gorman, Labor Law 53 (1976). The upshot of the presumptions is to permit unions to develop stable bargaining relationships with employers, which will enable the unions to pursue the goals of their members, and this pursuit, in turn, will further industrial peace. The rationale behind the presumptions is particularly pertinent in the successorship situation and so it is understandable that the Court in Burns referred to them. During a transition between employers, a union is in a peculiarly vulnerable position. It has no formal and established bargaining relationship with the new employer, is uncertain about the new employer’s plans, and cannot be sure if or when the new employer must bargain with it. While being concerned with the future of its members with the new employer, the union also must protect whatever rights still exist for its members under the collective-bargaining agreement with the predecessor employer. Accordingly, during this unsettling transition period, the union needs the presumptions of majority status to which it is entitled to safeguard its members’ rights and to develop a relationship with the successor. The position of the employees also supports the application of the presumptions in the successorship situation. If the employees find themselves in a new enterprise that substantially resembles the old, but without their chosen bargaining representative, they may well feel that their choice of a union is subject to the vagaries of an enterprise’s transformation. This feeling is not conducive to industrial peace. In addition, after being hired by a new company following a layoff from the old; employees initially will be concerned primarily with maintaining their new jobs. In fact, they might be inclined to shun support for their former union, especially if they believe that such support will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it. Without the presumptions of majority support and with the wide variety of corporate transformations possible, an employer could use a successor enterprise as a way of getting rid of a labor contract and of exploiting the employees’ hesitant attitude towards the union to eliminate its continuing presence. In addition to recognizing the traditional presumptions of union majority -status, however, the Court in Burns was careful to safeguard “ 'the rightful prerogative of owners independently to rearrange their businesses.’” Golden State Bottling Co. v. NLRB, 414 U. S. 168, 182 (1973), quoting John Wiley & Sons, Inc. v. Livingston, 376 U. S. 643, 549 (1964). We observed in Burns that, although the successor has an obligation to bargain with the union, it “is ordinarily free to set initial terms on which it will hire the employees of a predecessor,” 406 U. S., at 294, and it is not bound by the substantive provisions of the predecessor’s collective-bargaining agreement. Id., at 284. We further explained that the successor is under no obligation to hire the employees of its predecessor, subject, of course, to the restriction that it not discriminate against union employees in its hiring. Id., at 280, and n. 5; see also Howard Johnson Co. v. Hotel Employees, 417 U. S. 249, 262, and n. 8 (1974). Thus, to a substantial extent the applicability of Burns rests in the hands of the successor. If the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor, then the bargaining obligation of § 8(a)(5) is activated. This makes sense when one considers that the employer intends to take advantage of the trained work force of its predecessor. Accordingly, in Burns we acknowledged the interest of the successor in its freedom to structure its business and the interest of the employees in continued representation by the union. We now hold that a successor’s obligation to bargain is not limited to a situation where the union in question has been recently certified. Where, as here, the union has a rebuttable presumption of majority status, this status continues despite the change in employers. And the new employer has an obligation to bargain with that union so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by its predecessor. I — I I — i HH We turn now to the three rules, as well as to their application to the facts of this case, that the Board has adopted for the successorship situation. The Board, of course, is given considerable authority to interpret the provisions of the NLRA. See NLRB v. Financial Institution Employees, 475 U. S. 192, 202 (1986). If the Board adopts a rule that is rational and consistent with the Act, see ibid., then the rule is entitled to deference from the courts. Moreover, if the Board’s application of such a rational rule is supported by substantial evidence on the record, courts should enforce the Board’s order. See Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978); Universal Camera Corp. v. NLRB, 340 U. S. 474, 488 (1951). These principles also guide our review of the Board’s action in a successorship case. See, e. g., Golden State Bottling Co. v. NLRB, 414 U. S., at 181. A In Burns we approved the approach taken by the Board and accepted by courts with respect to determining whether a new company was indeed the successor to the old. 406 U. S., at 280-281, and n. 4. This approach, which is primarily factual in nature and is based upon the totality of the circumstances of a given situation, requires that the Board focus on whether the new company has “acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor’s business operations.” Golden State Bottling Co. v. NLRB, 414 U. S., at 184. Hence, the focus is on whether there is “substantial continuity” between the enterprises. Under this approach, the Board examines a number of factors: whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. See Burns, 406 U. S., at 280, n. 4; Aircraft Magnesium, Division of Grico Corp., 265 N. L. R. B. 1344, 1345 (1982), enf’d, 730 F. 2d 767 (CA9 1984); Premium Foods, Inc., 260 N. L. R. B. 708, 714 (1982), enf’d, 709 F. 2d 623 (CA9 1983). In conducting the analysis, the Board keeps in mind the question whether “those employees who have been retained will understandably view their job situations as essentially unaltered.” See Golden State Bottling Co., 414 U. S., at 184; NLRB v. Jeffries Lithograph Co., 752 F. 2d 459, 464 (CA9 1985). This emphasis on the employees’ perspective furthers the Act’s policy of industrial peace. If the employees find themselves in essentially the same jobs after the employer transition and if their legitimate expectations in continued representation by their union are thwarted, their dissatisfaction may lead to labor unrest. See Golden State Bottling Co., 414 U. S., at 184. Although petitioner does not challenge the Board’s “substantial continuity” approach, it does contest the application of the rule to the facts of this case. Essentially for the reasons given by the Court of Appeals, 775 F. 2d, at 430, however, we find that the Board’s determination that there was “substantial continuity” between Sterlingwale and petitioner and that petitioner was Sterlingwale’s successor is supported by substantial evidence in the record. Petitioner acquired most of Sterlingwale’s real property, its machinery and equipment, and much of its inventory and materials. It introduced no new product line. Of particular significance is the fact that, from the perspective of the employees, their jobs did not change. Although petitioner abandoned converting dyeing in exclusive favor of commission dyeing, this change did not alter the essential nature of the employees’ jobs, because both types of dyeing involved the same production process. The job classifications of petitioner were the same as those of Sterlingwale; petitioner’s employees worked on the same machines under the direction of supervisors most of whom were former supervisors of Sterlingwale. The record, in fact, is clear that petitioner acquired Sterlingwale’s assets with the express purpose of taking advantage of its predecessor’s work force. We do not find determinative of the successorship question the fact that there was a 7-month hiatus between Sterlingwale’s demise and petitioner’s start-up. Petitioner argues that this hiatus, coupled with the fact that its employees were hired through newspaper advertisements — not through Sterlingwale employment records, which were not transferred to it — resolves in its favor the “substantial continuity” question. See Brief for Petitioner 16-17, 20-22; see also 775 F. 2d, at 439 (dissenting opinion). Yet such a hiatus is only one factor in the “substantial continuity” calculus and thus is relevant only when there are other indicia of discontinuity. See NLRB v. Band-Age, Inc., 534 F. 2d, 1, 5 (CA1), cert. denied, 429 U. S. 921 (1976). Conversely, if other factors indicate a continuity between the enterprises, and the hiatus is a normal start-up period, the “totality of the circumstances” will suggest that these circumstances present a successorship situation. See NLRB v. Daneker Clock Co., 516 F. 2d 315, 316 (CA4 1975); C. G. Conn, Ltd., 197 N. L. R. B. 442, 446-447 (1972), enf’d, 474 F. 2d 1344 (CA5 1973). For the reasons given above, this is a case where the other factors suggest “substantial continuity” between the companies despite the 7-month hiatus. Here, moreover, the extent of the hiatus between the demise of Sterlingwale and the start-up of petitioner is somewhat less than certain. After the February layoff, Sterlingwale retained a skeleton crew of supervisors and employees that continued to ship goods to customers and to maintain the plant. In addition, until the assignment for the benefit of the creditors late in the summer, Ansin was seeking to resurrect the business or to find a buyer for Sterlingwale. The Union was aware of these efforts. Viewed from the employees’ perspective, therefore, the hiatus may have been much less than seven months. Although petitioner hired the employees through advertisements, it often relied on recommendations from supervisors, themselves formerly employed by Sterlingwale, and intended the advertisements to reach the former Sterlingwale work force. Accordingly, we hold that, under settled law, petitioner was a successor to Sterlingwale. We thus must consider if and when petitioner’s duty to bargain arose. B In Burns, the Court determined that the successor had an obligation to bargain with the union because a majority of its employees had been employed by Wackenhut. 406 U. S., at 278-279. The “triggering” fact for the bargaining obligation was this composition of the successor’s work force. The Court, however, did not have to consider the question when the successor’s obligation to bargain arose: Wackenhut’s contract expired on June 30 and Burns began its services with a majority of former Wackenhut guards on July 1. See id., at 275. In other situations, as in the present case, there is a start-up period by the new employer while it gradually builds its operations and hires employees. In these situations, the Board, with the approval of the Courts of Appeals, has adopted the “substantial and representative complement” rule for fixing the moment when the determination as to the composition of the successor’s work force is to be made. If, at this particular moment, a majority of the successor’s employees had been employed by its predecessor, then the successor has an obligation to bargain with the union that represented these employees. This rule represents an effort to balance “‘the objective of insuring maximum employee participation in the selection of a bargaining agent against the goal of permitting employees to be represented as quickly as possible/” 775 F. 2d, at 430-431, quoting NLRB v. Pre-Engineered Building Products, Inc., 603 F. 2d 134, 136 (CA10 1979). In deciding when a “substantial and representative complement” exists in a particular employer transition, the Board examines a number of factors. It studies “whether the job classifications designated for the operation were filled or substantially filled and whether the operation was in normal or substantially normal production.” See Premium Foods, Inc. v. NLRB, 709 F. 2d 623, 628 (CA9 1983). In addition, it takes into consideration “the size of the complement on that date and the time expected to elapse before a substantially larger complement would be at work ... as well as the relative certainty of the employer’s expected expansion.” Ibid. Petitioner contends that the Board’s “representative complement” rule is unreasonable, given that it Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond1_3_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 "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. ALASKA STEAMSHIP COMPANY, a corporation, and Northern Commercial Company, a corporation, d/b/a Northern Commercial Co. River Lines, Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, State of Alaska, Intervenor. No. 19297. United States Court of Appeals Ninth Circuit. April 15, 1965. Rehearing Denied May 21, 1965. Edward G. Dobrin, Stanley B. Long, Arthur G. Grunke, Bogle, Bogle & Gates, Seattle, Wash., for petitioners. James L. Pimper, Gen. Counsel, Robt. E. Mitchell, Deputy Gen. Counsel, Walter H. Mayo, III, F.M.C., Washington, D. C., Wm. H. Orrick, Jr., Asst. Atty. Gen., Irwin A. Seibel, Atty., Dept, of Justice, Washington, D. C., for respondents. Warren Colver, Atty. Gen. of Alaska, Juneau, Alaska, Richard S. Sasaki, Honolulu, Hawaii, for intervenor, State of Alaska. Before HAMLEY, MERRILL and DUNIWAY, Circuit Judges. HAMLEY, Circuit Judge: Alaska Steamship Company (Alaska Steam) and Northern Commercial Company (Northern Commercial) have petitioned for review of two orders of the Federal Maritime Commission entered in a rate investigation proceeding. The State of Alaska has intervened in support of the Commission orders. The rate investigation was conducted in discharge of the Commission’s functions and responsibilities under the Shipping Act, 1916, 39 Stat. 728, as amended, 46 U.S.C. § 801 et seq. (1958), and the Intercoastal Shipping Act, 1933, 47 Stat. 1425, as amended, 46 U.S.C. § 843 et seq. (1958). The review in this court was instituted pursuant to the Review Act of 1950, 64 Stat. 1129, 5 U.S.C. § 1031 et seq. (1958). Alaska Steam is a carrier by water in the Alaska trade. The company serves all of the areas of the State of Alaska as a common carrier by water to and from the ports of Seattle and Tacoma, Washington, on the one hand, and various ports and places in Alaska, on the other. Such operations consist of two kinds of service, one seasonal and the other scheduled. The seasonal service is operated during the summer months to and from the seasonal areas of Alaska, namely: Bristol Bay, Nome, Kotzebue and Bering Sea. This service includes the transportation of cannery supplies northbound and canned salmon southbound. The scheduled service is operated year-round to all other areas of Alaska. Northern Commercial serves ports and places along the Yukon River, Alaska, as a common carrier by water in conjunction with the seasonal service of Alaska Steam. Both petitioners are subject to the regulatory jurisdiction of the Commission. On December 18, 1961, Alaska Steam filed with the Commission tariff schedules providing percentage increases in the rates of commodities moving principally, but not exclusively, in the seasonal service. The rate increases, which were intended to become effective on January 18, 1962, were twenty percent on cannery supplies, consisting of cans, cartons and salt, and ten percent on other commodities. These increased rates will be referred to herein as the “company rates.” Pursuant to its statutory powers, the Commission suspended these rates for four months pending investigation. The Commission simultaneously instituted an investigation in its Docket No. 969 entitled “Alaska Steamship Company— General Increase in Rates in the Peninsula and Bering Sea Areas of Alaska,” to determine whether the increased rates are just and reasonable. Thereafter, Northern Commercial filed tariff schedules with the Commission naming increased rates and charges applying to its service along the Yukon River in conjunction with the seasonal service of Alaska Steam. The Commission suspended these rates for four months and instituted an investigation in its Docket No. 1067 entitled “Northern Commercial Co. River Lines — General Increase in Rates in the Yukon River Area of Alaska,” to determine whether the increased rates are just and reasonable. The investigations in Docket No. 969 and Docket No. 1067 were consolidated and hereinafter are called the consolidated dockets. By stipulation the parties agreed that the decision in Docket No. 969 would govern the rates and charges in Docket No. 1067. In view of this circumstance and in accordance with the plan followed by all parties in this review proceeding, we will hereinafter refer to Alaska Steam as if it were the only petitioner, and the company rates as if they were the only carrier-sponsored increases in question. The rate investigation not having progressed to the stage where the Commission could enter a final order prior to the expiration of the four months suspension period, the company rates went into effect on May 18, 1962, and remain in effect to the present time. From December 4 through 15, 1962, a hearing examiner held hearings in the consolidated dockets. The examiner issued an initial decision on May 31, 1963. He held that the company rates produced a rate of return of 19.40 percent on the rate base attributable to the seasonal operation during the 1962 test year, and that such rates are unjust and unreasonable to the extent that they produce a rate of return in excess of twelve percent on this rate base. The examiner further held that the company rates are just and reasonable “ * * * to the extent they produce a rate of return up to and including 12 percent. * * * » The Commission’s hearing counsel, Alaska Steam, and two intervenors, State of Alaska and General Services Administration, filed exceptions. The Commission heard oral argument on the exceptions and rendered its decision on March 5, 1964. The Commission held that a permissible rate of return for Alaska Steam would be ten percent on the rate base attributable to the seasonal service, and that during the test year the company rates had produced a rate of return of 19.75 percent on that rate base. The Commission ordered Alaska Steam to submit, within thirty days, amended tariff schedules showing rates which would produce no more than a ten percent return on the seasonal service. On April 1, 1964, Alaska Steam petitioned the Commission for a rehearing. In this petition the company sought a reopening of the investigation to receive evidence of the actual results of the seasonal service for 1962 and 1963. In addition, Alaska Steam asserted that the company rates were in compliance with the March 5, 1964 order as actual results for 1962 and 1963 showed that they were not actually producing a rate of return in excess of ten percent. In its petition for rehearing Alaska Steam stated that “ * * * if revised tariff schedules were to be filed, consistent with the Commission’s findings and conclusions, then based on 1963 operations, Respondents would find it necessary to increase the present seasonal rates an additional 8.082%. * * ” (Emphasis in original.) By order dated May 12, 1964, the Commission denied the petition for rehearing. In response to Alaska Steam’s assertion that the company rates were lawful under the Commission order, when viewed in the light of actual operating results in 1962 and 1963, the Commission stated that the company had misconceived the intent of the original order. That intent, the Commission stated in its May 12, 1964 order, was that Alaska Steam would file amended tariffs that would set forth rates based on a ten percent rate of return in the seasonal operation using the figures tested during the proceeding. The Commission added, as a part of its order of May 12, 1964, findings that on the basis of the record in these proceedings the company rates are unjust and unreasonable and that maximum fair and reasonable increases over the level of rates in effect prior to the company rates would be the lesser percentage increases specified in the May 12, 1964 order. Alaska Steam was given fifteen days within which to file amended tariff schedules giving effect to this finding as to appropriate rate increases. Instead of doing so it filed this petition to review both the March 5, 1964 decision and the order of May 12, 1964. Alaska Steam contends that the Commission should have tested the company rates by the results of the overall Alaska operations rather than of the seasonal operations and that, so tested, the company rates are just and reasonable. The Commission agreed with the hearing examiner that the reasonableness of the company rates should be tested by the results of the seasonal service and not by the results of the overall Alaska operations. In order to accomplish this it was necessary to construct a partial rate base attributable to the seasonal service, and to allocate revenues and expenses for the 1962 test year as between scheduled and seasonal service. The selection of a method or formula for computing permissible rates is for the Commission, unless its action is arbitrary. Government of Guam v. Federal Maritime Commission, 117 U.S.App.D.C. 296, 329 F.2d 251, 253-254. In determining whether the selection of a particular method or formula represents arbitrary action, courts look to the reasons which the Commission itself gave for such action, post hoc rationalizations for agency action being unacceptable. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207. If the Commission’s decision of March 5, 1964, discloses a rational basis for testing the company rates by the results of the seasonal operation, its action in doing so is not arbitrary. The Commission’s rationale in using the results of a separated seasonal rate base, as set forth in its decision of March 5. 1964, is quoted in the margin. Challenging this line of reasoning, Alaska Steam argues that it is predicated on the erroneous assumptions that the scheduled service was operated at a loss, and that Alaska Steam enjoys a virtual monopoly in its seasonal operation while in its scheduled service the company faces keen competition. The company also argues that there is no other factual or legal justification or rationale supporting such action but, on the contrary, the facts negate such a separation. The question of whether the scheduled service operated at a loss in the test year is discussed at a later point in the opinion in connection with another issue. For present purposes we shall assume, as Alaska Steam contends, that it did not operate at a loss during that year. But even under the company’s computation, the gross profits on the scheduled service were only $74,655 in the test year, as compared to a gross profit of $361,484 on the seasonal service. The theory underlying the Commission’s quoted rationale is as valid where, as here, the profit on the scheduled service is minimal when compared to the seasonal service, as where the scheduled service is operated at an actual loss. In either case, the effect of rate increases mainly confined to the seasonal service, justified as necessary to provide a reasonable rate of return on the overall operation, is to subsidize the scheduled service at the expense of the seasonal service. Alaska Steam points out that anyone willing to risk substantial loss and to be limited by regulation as to earnings is free to enter the seasonal trade. The company also notes that some seasonal service is rendered by others and that no rate-payer, shipper or other person using the seasonal service appeared and protested the company rates or testified to being “captive shippers.” Therefore, Alaska Steam argues, the Commission should not have tested the company rates by the results of the seasonal operation on the assumption, as stated in the quoted Commission statement, that Alaska Steam has a “virtual monopoly” in the seasonal service and that those using that service are “captive shippers.” Granting the right of others to enter the seasonal service, not questioned by the Commission, the fact is that Alaska Steam carries from ninety-five to ninety-seven percent of the total salmon packed from ports served by the seasonal vessels on the Alaska Peninsula, Bristol Bay and the Arctic. In the light of that economic fact it was not inappropriate to refer to the company’s seasonal service as a “virtual monopoly,” and to those using that service as “captive shippers.” The significance of this characterization lies in the fact that, since Alaska Steam ran little risk of losing freight by increasing rates on seasonal cargo, there was the danger that seasonal shippers might be compelled to produce a disproportionate share of the necessary revenue needed to sustain the overall operation. If, on the other hand, the rates to be paid by the seasonal shippers must be tested by that operation alone, this danger would not be present. The preceding discussion also demonstrates that importance should be attached to the fact that the increases filed by Alaska Steam apply to commodities moving principally in the seasonal trade. The Commission took this consideration into account, thereby implying that it held the view that if Alaska Steam needed rate increases to sustain its overall operation, it should not have limited its rate increases largely to the seasonal service. Considering together all factors upon which the Commission relied, we think it is established that the Commission had a rational basis for testing the reasonableness of the company rates against the seasonal operation alone. Its action in doing so is therefore not arbitrary. Alaska Steam next argues that, even testing the reasonableness of the company rates by the seasonal service alone, such rates are just and reasonable and the Commission’s determination to the contrary resulted from arbitrary action in four particulars. Each of these asserted instances of arbitrary action is discussed below. One of these, the company urges, was the action represented by the Commission’s method of computing federal income taxes, to be deducted from gross profit in the test year on the seasonal service produced by the company rates, in determining net profit. The Commission found the gross profit of the seasonal service produced at the company rates to be $361,484 for the test year. The Commission, however, did not compute federal income tax on the seasonal service on the basis of this gross profit figure. Instead, it computed the tax on the $160,064 gross profit figure on the overall Alaska Steam operation for the test year, as shown in the company’s exhibit 3-B-5, introduced during the hearing before the examiner. In arriving at its gross profit figure on the overall operation for the test year at the company rates, the company projected a gross profit of $281,182 on the seasonal operation, and losses of $97,970 on the scheduled {operation and $23,148 on the offshore, offseason operation. The federal income tax derived by the Commission which used the $160,064 gross profit figure was $77,226, which, obviously, is substantially below a theoretical fifty-two percent on the $361,484 gross profit on the seasonal operation as found by the Commission. If it were true that, using the same methods employed by the Commission in projecting gross profit on the seasonal service, the scheduled service would show a loss in the test year, we do not believe that it would be arbitrary action for the Commission to take that into account in computing federal income tax on the seasonal operation. Under this hypothesis the federal income tax attributed to the seasonal service for the purpose of computing net profit would be less than a theoretical fifty-two percent on the Commission’s gross profit figure of $361,484. But there would be a rational basis for using that decreased percentage since, otherwise, the seasonal operation would be charged with an income tax burden which, under the Commission’s method of computing gross profit, the company would not bear. But, as the Commission knew, the company’s projection of a $97,970 loss on the scheduled service in the test year, as shown in its exhibit 3-B-5 utilized, in one particular, a substantially different method of determining gross profit than that used by the Commission in dealing with the seasonal operation. In that exhibit, the company based annual depreciation expense on estimated useful lives of the vessels of twenty years from date of construction, with the exception of two more recently-acquired vessels which the company depreciated on the basis of a twenty-five-year life. This was in conformity with Alaska Steam’s position throughout the proceedings that this was the proper basis of depreciation. But the examiner, giving effect to a determination made by the Commission on April 30, 1963, in its Docket No. 881, General Increases in Alaskan Rates and Charges, 7 F.M.C. 563, 577-578 (1963), determined that: “ * * the useful life period of all of the vessels owned by Alaska Steam, used in the Alaskan trade, is found to be 25 years.” The Commission concurred in this determination and accordingly decreased the annual depreciation claimed by Alaska Steam for vessels employed in the seasonal trade in the test year, from $158,627, as claimed by the company, to $108,933. This, of course, had the tendency to maximize gross profit on the seasonal operation for the test year. But neither the examiner nor the Commission made a like adjustment in the company’s exhibit 3-B-5, when they chose to use. the overall gross profit for the test year, as projected therein, in computing federal income taxes on the seasonal service. Alaska Steam advises us, and the Commission does not dispute this, that had a like adjustment been made in the depreciation figures in exhibit 3-B-5, depreciation on the scheduled operation would have been reduced from $445,938 to $255,715. This decrease in depreciation would have more than offset the $97,970 loss on the scheduled operation as projected in exhibit 3-B-5 and would have removed any basis for calculating federal income tax on the seasonal operation on the assumption that gross profit on that operation had been minimized by a loss on the scheduled service. Without undertaking computations of our own it is quite evident that the 19.75% rate of return on the seasonal service at the company rates for the test year was substantially higher than it would have been had the Commission, in determining federal income tax, applied a hypothetical fifty-two percent rate of return to the $361,484 seasonal gross profit figure fixed by the Commission. In our view, the Commission’s determination to compute federal income tax on the assumption that the company lost $97,970 on the scheduled service in the test year, notwithstanding the fact that, applying the Commission’s depreciation formula, there was no such loss, represents arbitrary action requiring a remand for further proceedings. The Commission also acted arbitrarily, Alaska Steam asserts, with regard to the manner in which it allocated to the seasonal service a part of the administrative and general expense of the corporation in the test year. The overall administrative and general expense incurred by the company during the test year was $1,625,330. Alaska Steam proposed to allocate a portion of this expense to the seasonal service on the basis of actual vessel days, in accordance with the Maritime Administration’s General Order No. 60, 46 C.F.R. § 299.48 (d). This General Order provides for the method of allocating administrative and general expense between the chartered and owned vessels of Alaska Steam to determine the charter hire payable under the provisions of the charter. Three of the vessels operated by Alaska Steam in the seasonal service are chartered from the Maritime Administration. On this basis $410,444 of the administrative and general expense would have been allocated to the seasonal operation. The Commission, however, allocated this expense in the proportion that the total vessel operating expense of each service bears to the total vessel operating expense. Accordingly the Commission allocated $384,228 to the seasonal service, or $26,216 less than the company allocation. Alaska Steam asserts that had its method of allocation been followed, this one adjustment would have reduced the rate of return on the seasonal service for the test year from 19.75 percent as found by the Commission, to less than 12.3 percent. The company argues that the allocation method established by the Maritime Administration is at least prima facie evidence of the proper method of allocation, that there is no evidence in the record to support any other method of allocation, that the Commission decision does not contain findings sufficient to support the method of allocation which it used, and that certain findings made by the Commission tend to support Alaska Steam’s allocation method. In view of these considerations, Alaska Steam argues, the Commission acted arbitrarily in the matter of allocating a portion of the overall administrative and general expense to the seasonal operation. In establishing its allocation method the Maritime Administration is engaged in determining excess charter hire. In formulating its allocation method, the Commission is engaged in economic regulation. In view of the disparity of objectives we do not believe that, in a rate case before the Commission, the Maritime Administration’s allocation method can be regarded as prima facie evidence of the proper method. It is a factor to be considered, and nothing more. Perhaps, as Alaska Steam asserts, the record does not contain testimony or exhibits tending to support the allocation method adopted by the Commission, as preferable to that proposed by the company. But the examiner and Commission were entitled to, and did, take official notice of the allocation method utilized by the Commission in General Increase in Rates (1961), 7 F.M.C. 260, at 288 (1962), referred to herein as the Hawaiian case. In that case an allocation between passenger service and freight service was necessary. The Commission chose to allocate expenses between the two services as it has done here, in preference to a revenue prorate method of allocating expense. While the Commission was not there called upon to reject the Maritime Administration’s allocation method, it did determine that an allocation of Administrative and general expenses on the basis of comparative operating expenses of the two services, was appropriate for rate-making purposes. It is true that the Commission’s determination, in the Hawaiian case, as to the appropriate allocation method to be applied, is not necessarily controlling here. Whatever allocation method has been found to be suitable in other rate cases, it is always open to a carrier to show that, under the facts of its case, that method would not be equitable. The company refers to the Commission findings referred to in note 11, as demonstrating that the Commission’s allocation method works out inequitably in this case. These findings have some tendency in that direction notwithstanding the fact that they were made with particular reference to the matter of working capital. But we are unable to say on this record that still greater inequities from the public point of view, or that other counterbalancing disadvantages such as those associated with the complexity of the Maritime Administration formula, might not have inhered in accepting, for rate-making purposes the latter’s allocation method. The Commission made a considered choice between the two methods. In our view, the reasons which it gave for choosing the prorating of operating expenses method of allocating administrative and general expenses, are adequate when measured by the standards of adequacy of such findings announced “Where direct allocations are impossible or impracticable, expenses should be allocated between the passenger and freight services on the basis of the relation that the expenses incurred in the passenger and freight operations separately bear to the total expenses incurred in the operation of both. Administrative expenses should follow the expenses to which they relate. If revenues were used as a basis of allocating expenses, the increase in revenue resulting from a freight rate increase would result in an increased allocation of expenses. A rate increase might be used as the basis for justifying a further increase in rates.” in Government of Guam v. Federal Maritime Commission, 117 U.S.App.D.C. 296, 329 F.2d 251, 254-256. The Commission’s choice of the allocation method does not represent arbitrary action. Alaska Steam contends that the Commission acted arbitrarily in determining the permissible rate of return on the property devoted to the seasonal service. Alaska Steam produced testimony by one witness to the effect that the company would require a rate of return of twenty to twenty-five percent to prevent attrition of capital. No other evidence was offered. The examiner found that while the rate of return needed cannot be determined on this record with exactitude, in order to give effect to the applicable principles in establishing just and reasonable rates, a “reasonable maximum” rate of return for Alaska Steam in its seasonal service is twelve percent. The examiner therefore found and concluded that the company rates are unjust and unreasonable to the extent that they produce a rate of return in excess of twelve percent. In the subsequent proceedings before the Commission, the latter disagreed with the examiner’s finding that “a reasonable maximum rate of return” should be set in this case, holding that it was unnecessary for the Commission to bind itself by setting a maximum rate of return. As to the actual rate of return to be allowed, the Commission also disagreed with the examiner, finding that the company rates are unjust and unreasonable to the extent that they allow Alaska Steam a rate of return in its seasonal service in excess of ten percent. There is no disagreement between the parties as to the principles to be applied in fixing an appropriate rate of return for rate-making purposes. The company argues that the testimony which it produced gave effect to these criteria and is consonant with the principles applied by the Commission in the Hawaiian case. Moreover, the company contends, the Commission determination that the rate of return on the seasonal service should not exceed ten percent is not supported by findings, based on testimony, that this is a fair and reasonable rate of return. In rejecting the testimony of the company expert as to the appropriate rate of return, the Commission expressed the view that this witness did not “ * * * take into consideration the realities of the situation.” Explaining what it meant by this, the Commission pointed out that Alaska Steam is a closely-held Seattle-based corporation which does not go to the public for capital. All of the other companies referred to by the company expert for comparative purposes were publicly owned, and only one of them was based in Seattle. In discussing the question of rate of return the Commission also found that the seasonal operations of Alaska Steam “ * * * have perhaps a higher degree of risk than other steamship operations.” But the agency also noted that the company occupies a “monopolistic” position in the seasonal trade, the effect of which is to minimize the greater business risk resulting from the seasonal character of the operation. We do not find in these reasons for rejecting the rate-of-return opinion of the company expert, the indicia of arbitrary action. In the Hawaiian case the Commission found rates of return of 8.32 percent for 1960 and 10.59 percent for 1961 not to be excessive in the Hawaiian trade. In that case the Commission determined the lawfulness of proposed Pacific coast-Hawaiian rates upon the results of operations by Matson Navigation Company (Matson), which carried from eighty-eight to 91.3 percent of the cargo. The Commission’s finding that the rate of return percentages referred to above would not be excessive for Matson in the Hawaiian trade was based, in part, on the agency’s view that Matson, “ * * * is also subject to competition by other carriers who are free to enter the trade, * * * ” Alaska Steam asserts that the same facts are true as to its seasonal operation, yet the Commission, departing from the course it followed in the Hawaiian case, held that “ * * * risk to capital is reduced by Alaska Steam’s monopolistic position in the trade.” On most of the seasonal operation, as heretofore noted, Alaska Steam carries from ninety-five to ninety-seven percent of the salmon pack, which is the principal cargo. It is therefore experiencing substantially less competition than that which confronts Matson in the Hawaiian trade. Yet the Commission has allowed nearly as large a rate of return on the seasonal operation (ten percent) as it did on the Hawaiian trade for 1961 (10.59 percent). The basic principles to be applied in determining the proper rate of return do not vary from case to case. But the differing factual backgrounds of each case are usually such that the particular rate of return found reasonable in one case is not a reliable guide of what it should be in another. We are not convinced that the Commission’s determination as to this in the case now before us,, so substantially and unjustifiably departs from what it did in the Hawaiian case, that arbitrary action is indicated. In Docket No. 881, General Increases in Alaskan Rates and Charges, 7 F.M.C. 563 (1963), the Commission in testing a ten percent rate increase applicable alike to Alaska Steam’s scheduled and seasonal service, allowed a rate of return of 9.07 percent on the overall operations. The company correctly points out that there is nothing in that decision to indicate that the Commission intended to fix a maximum allowable rate of return. The Commission has not held otherwise here, having expressly rejected the examiner’s finding that a reasonable maximum rate of return should be fixed. But the actual rate of return of ten percent on the seasonal operation, against which the Commission found that the reasonableness of company rates should be tested, substantially exceeds the actual rate of return applied in General Increases in Alaskan Rates and Charges. We hold that the Commission did not act arbitrarily in dealing with the question of rate of return. The fourth and final respect in which the Commission acted arbitrarily in testing the reasonableness of the company rates by the seasonal service, Alaska Steam asserts, is in its determination of the working capital requirement of the company for inclusion in its seasonal rate base. At the hearing before the examiner, two witnesses called by the company testified as to the overall working capital requirement of Alaska Steam. One expressed the opinion that the overall working capital requirement was not less than $3,000,000. The other gave a minimum figure of $2,800,000. Allocated as between scheduled and seasonal service the lesser of these sums would have established $661,920 as the working capital on the seasonal service. The examiner, however, allowed only $453,090 for working capital on the seasonal service, and the Commission upheld this determination. On this review, Alaska Steam argues that the Commission erred in not accepting the testimony of the two company witnesses as to required working capital, pointing out that there is no other evidence in the record bearing upon this matter. The testimony of these two witnesses is summarized in the margin. The Commission rejected the figures provided by these witnesses on the ground that they were, in essence, based on the difference between current assets and liabilities on the company’s balance sheet at a given time, plus approximately half as much again for contingencies, and that a figure so derived bears no relationship to the needs of the carrier. We agree with the Commission that, whatever the justification may be for the working capital figures submitted by the company witnesses, they were essentially derived in the manner described. It would be purely coincidental if a figure so determined fairly represented the working capital requirements of a carrier or utility. As indicated by a generally accepted definition of working capital set out in the margin, the excess of current assets over current liabilities, as such, has no relation to company needs, the latter being the controlling factor in determining working capital. The company witnesses expressed the view that the figures submitted by them represented the working capital needs of Alaska Steam. No other witness expressed a different view. But while the financial and operating data of a carrier is subject to factual proof, the determination of its prospective working capital needs necessarily brings into play judgment factors lying in the realm of opinion. The company witnesses were expressing informed opinions. In rejecting those opinions the Commission, also informed as to the relevant financial and operating facts, and in addition having expertise in the economic regulation of steamship companies, generally, expressed a contrary opinion. We cannot say, on this record, that the Commission acted arbitrarily because it did not give up its own opinion and accept that of the company witnesses. Alaska Steam also makes a general attack upon the method utilized by the examiner and Commission in arriving at a seasonal working capital figure of $453,-090. This figure was computed according to the method prescribed in Maritime Administration General Order No. 31, 2d Revision, 46 C.F.R. § 286.3, Limitation (4), with insurance for a ninety-day period as required by that formula. Alaska Steam points out that this General Order was adopted for the purposes of applying the reserve and recapture provisions of Operating — Differential Subsidy Agreements (46 C.F.R. § 286.0), and that Alaska Steam does not operate under such subsidy agreements. A figure so determined, the company asserts, does not furnish a realistic measure of working capital used and needed for the purpose of serving the Alaskan trade. The Commission did not utilize the General Order No. 31 formula on the supposition that Alaska Steam has a subsidy operation, but because that formula provides a tested way of deriving a figure representing the average voyage expenses for each vessel in the carrier’s fleet. As early as its predecessor’s 1957 decision in Pacific Coast/Hawaii and Atlantic-Gulf/Hawaii General Increases in Rates, 5 F.M.B. 347, 350, 355, the Commission decided that this averaging of one-voyage expenses was an appropriate way to determine working capital requirements. See Government of Guam v. Federal Maritime Commission, 117 U.S.App.D.C. 296, 329 F.2d 251, 256. The reasoning behind this theory was first expressed by the Commission in Atlantic & Gulf-Puerto Rico General Increase in Rates and Charges, 7 F.M.C. 87, as quoted in the margin. This method of computing working capital has since been utilized by the Commission in General Increases in Alaskan Rates and Charges, 7 F.M.C. 563, at 582 (1963), and in the Hawaiian case, 7 F.M.C. 260, at 289 (1962). However, the sum total of the voyage expense of one round trip for each vessel engaged in a particular steamship operation is not necessarily a fair gauge of the carrier’s working capital needs in that operation. This was made clear in Government of Guam v. Federal Maritime Commission, 117 U.S.App.D.C. 296, 329 F.2d 251, 256-257, where working capital, so derived, amounted to forty-seven percent of the total rate base. Noting this “apparently incongruity,” and holding that the Commission had made no findings and stated no conclusions to support its reason for applying the General Order No. 31 formula in that case in determining working capital, the court remanded the case for further proceedings. The Commission decision in the case before us contains a rather full statement as to the various factors to be taken into consideration in determining the working capital requirements of Alaska Steam in its seasonal operation. There are no specific findings or conclusions as to why a computation based on one round-trip voyage expense of each vessel would produce an adequate working capital figure taking into account the factors mentioned. But the Commission was entitled to, and did, take official notice of its past decisions in which the same formula was applied, including the 1963 case involving the overall operations of Alaska Steam. General Increases in Alaskan Bates and Charges, 7 F.M.C. 563, at 582 (1963). Such notice carried with it the reasons relied upon in the past cases concerning the appropriateness of using this formula. The most comprehensive statement' of these reasons, contained in the decision in the Puerto Rico case, is quoted in note 18. We do not find in the record any factual basis for finding that a working capital formula appropriate for Alaska Steam’s overall operations, is not appropriate for its seasonal operation. There is, indeed, some reason for believing that this formula tends to produce a more liberal figure for the seasonal working 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_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. James Eugene BOOTH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 92-8609 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Aug. 4, 1993. James Eugene Booth, pro se. William Louis McKinnon, Jr., Asst. U.S. Atty., Atlanta, GA, for respondent-appellee. Before HATCHETT, ANDERSON and COX, Circuit Judges. PER CURIAM: James Booth appeals from the district court’s denial of his pro se motion to vacate his sentence, filed pursuant to 28 U.S.C. § 2255. After pleading guilty to transporting stolen goods in interstate commerce, Booth was sentenced to ten years imprisonment on July 27, 1983. Before being released on parole on January 8, 1988, Booth had accumulated 710 days of statutory good time credit. On August 1, 1988, Booth was reincarcerated for a parole violation. He subsequently discovered that the good time credits he had earned would not be available to reduce his sentence. Booth filed a motion to vacate his sentence in the United States District Court for the Northern District of Georgia, alleging that his good time credits were illegally forfeited upon his prior parole and that this action, taken without notice, violated his right to due process. The district court denied Booth’s motion. 28 C.F.R. § 2.35(b) addresses the issue of whether good time credits may be applied to shorten a prisoner’s period of incarceration following a parole violation. That regulation holds that good time credits do not survive conditional release, and may not be used either to shorten the period of supervision following conditional release or to shorten the period of imprisonment that may be imposed for a parole violation: It is the Commission’s interpretation of the statutory scheme for parole and good time that the only function of good time credits is to determine the point in a prisoner’s sentence when, in the absence of parole, the prisoner is to be conditionally released on supervision, as described in subsection (a). Once an offender is conditionally released from imprisonment, either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole or mandatory release. 28 C.F.R. § 2.35(b) (1992). Section 2.35 was amended in 1985 to set forth the Commission’s interpretation of the interaction between the parole statutes and the prison good time statutes. 50 Fed.Reg. 46, 282 (1985). At that time, the Parole Commission explained that the amendment was not a new interpretation of the law, but rather a formalization of the Commission’s long-standing practice of treating good time credits as being “used up” once a prisoner is paroled or given mandatory release. Id. The Commission noted that its practice had not been to order the “forfeiture” of good time, although the result would be the same whether the time was considered used up or forfeited. Id. Agency regulations are entitled to great deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). We must also defer to a federal agency’s construction of its own regulation unless it is plainly erroneous or inconsistent with the language and purpose of the regulation. Parker v. Bowen, 788 F.2d 1512 (11th Cir.1986). Because we conclude that the Parole Commission’s regulation and explanatory material concerning the viability of good time credits following parole are reasonable, we will follow their dictates. Under the regulation, all of Booth’s good time credits were used up when he was released on parole. They were thus unavailable to reduce the sentence he received for his parole violation. See Boniface v. Carlson, 881 F.2d 669 (9th Cir.1989) (following 1985 amendment to regulation and holding that good time used up when prisoner paroled); Ray v. Brewer, 808 F.2d 19 (7th Cir.1986) (same). AFFIRMED. . Case law in the former Fifth Circuit held that a prisoner forfeited all good time credit when he violated parole. Henning v. United States Bureau of Prisons, 472 F.2d 1221 (5th Cir.1973). Prior to the 1985 amendment to 28 C.F.R. § 2.35, this court also followed that line of cases. Swicegood v. United States Parole Com., 755 F.2d 880 (11th Cir.1985). As the Commission pointed out, the end result is the same whether one considers a prisoner's good time credits to be used up at the time of release or forfeited as a consequence of a parole violation. 50 Fed.Reg. 46,282 (1985). . Booth’s other arguments are without merit and warrant no discussion. 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_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. LUMMUS COMPANY, Defendant, Appellant, v. COMMONWEALTH OIL REFINING COMPANY, Inc., Plaintiff, Ap-pellee (three cases). Nos. 5552-5554. United States Court of Appeals First Circuit Dec. 21, 1959. See also 174 F.Supp. 485. Richard Bancroft, Putnam, Bell, Santry & Ray, Boston, Mass., Cahill, Gordon, Reindel & Ohl, New York City, and McConnell, Valdes & Kelley, San Juan, P. R., for appellant on motion for stay and memorandum in support thereof. Ruben Rodriguez-Antongiorgi, San Juan, P. R., Richard deY. Manning, Milton Pollack, John F. Dooling, Jr., Dennis C. Mahoney, Hamilton F. Potter, Jr., New York City, Fiddler, Gonzalez, Guillemard & Rodriguez, San Juan, P. R., and Sullivan & Cromwell, New York City, for appellee on memorandum in opposition to motion for stay. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. PER CURIAM. Defendant-appellant’s motion to delay discovery until after the decision of its pending appeal from the order of the district court staying arbitration is properly before us. Bernhardt v. Polygraphic Co. of America, Inc., 2 Cir., 1956, 235 F.2d 209; Mesabi Iron Co. v. Reserve Mining Co., 8 Cir., 1959, 268 F.2d 782. We believe it should be granted. We do not rest this decision on the ground that proceeding with discovery may involve lost motion. Rather, we feel appellee makes no satisfactory answer to appellant’s contention that a court order of discovery would be affirmatively inimical to appellee’s obligation to arbitrate, if this court determines it to have such obligation. It seems clear that if arbitration is to be had of the entire dispute, appellee’s right to discovery must be far more restricted than if the case remains in a federal court for plenary trial of the issue of fraud. Application of Katz, 1957, 3 A.D.2d 238, 160 N.Y.S.2d 159; Stiller Fabrics, Inc. v. Michael Saphier Associates, Inc., 1956, 1 Misc.2d 787, 148 N.Y.S.2d 591; Commercial Solvents Corp. v. Louisiana Liquid Fertilizer Co., D.C.S.D.N.Y.1957, 20 F.R.D. 359 (United States Arbitration Act, 9 U.S.C.A. § 1 et seq.); American Arbitration Association, Commercial Arbitration Rules § 30. We cannot avoid the thought that the principal reason appellee has for not awaiting discovery until the decision of this court is the fear that that course will be unavailable if such ruling proves to be adverse. Until it is determined whether this action has been properly brought, appellee should not receive any unnecessary fruits thereof. An order will enter allowing defendant-appellant’s motion for stay of discovery. Question: 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_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. G. T. SCHJELDAHL CO., PACKAGING MACHINERY DIVISION, Plaintiff, Appellant, v. LOCAL LODGE 1680 OF DISTRICT LODGE NO. 64 OF INTERNATIONAL ASSOCIATION OF MACHINISTS, Defendant, Appellee. No. 7032. United States Court of Appeals First Circuit. April 12, 1968. Robert J. Cotton, Boston, Mass., with whom Morris L. Deutsch and Schneider, Bronstein, Wolbarsht & Deutsch, Boston, Mass., were on the brief, for appellant. Richard A. Skolnik, Providence, R. I., with whom Julius C. Michaelson and Abedon, Michaelson, Stanzler & Biener, Providence, R. I., were on the brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. This is an action under section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185, against a union for damages caused by breach of a no-strike clause in a collective bargaining agreement. The district court stayed the action pending arbitration demanded by the union pursuant to another provision in the agreement and the company appeals. Jurisdiction exists under 28 U.S. C. § 1292(a). Hilti, Inc. v. Oldach, 1 Cir., 1968, 392 F.2d 368. The company properly, at least in a case where the union asserts there was no strike, does not contend that by striking over its alleged grievance the union waived whatever right it had to insist on arbitration. Drake Bakeries, Inc. v. Local 50, American Bakery, etc., Workers, 1962, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474. Rather, it stakes all on a claim that arbitration was not required under the agreement. The pertinent provisions are found in Article 8, the “Grievance Procedure.” 8.1 The term “grievance” means a difference or dispute between the Company and the Union, or between the Company and any employee with respect to the interpretation, meaning, application, claim of breach or violation of any of the provisions of this Agreement. 8.2 All grievances must be taken up within ten (10) working days of their occurrence or they shall not be deemed valid. 8.3 Any grievance as described above shall be settled in accordance with the following procedure: First: Employees in the first instance may register grievances with the Steward who shall present such grievances to the immediate supervisor. The immediate supervisor’s answer shall be given as soon as possible but not to exceed one working day. Matters unsettled at this point shall be reduced to writing and given to the Manager of Industrial Relations of the Company. Second: [We omit reproduction of this, and also of step three, both of which provide for continuation of the employee-initiated grievance commenced under step one.] 8.4 Within sixty (60) days of the date of the Company’s answer of the Third Step, the Union will notify the Company in writing of its intention to (a) accept the Company’s answer as final disposition, (b) withdraw the grievance, or (c) submit the grievance or grievances to arbitration. 8.5 Any grievance not settled in the grievance procedure may be submitted to arbitration by either party. * * * The company properly concedes that, standing alone, Art. 8.1 is broad enough to describe employer grievances as well as employee grievances. However, we point out that this is because of the generality of its language, as distinguished from a specific statement. Arts. 8.3 and 8.4 are very clearly in terms limited to employee grievances. We cannot accept the union’s contention that this is a “strained interpretation.” Rather, if we stop here we must agree with the company that this particularization in Arts. 8.3 and 8.4 calls into effect the principle that a subsequent specification impliedly limits the meaning of a preceding generalization. J. E. Faltin Motor Transp., Inc. v. Eazor Express, Inc., 3 Cir., 1959, 273 F.2d 444; Rice Growers Ass’n of Cal. v. F. Carrera & Hno., Inc., 1 Cir., 1956, 234 F.2d 843; Antonio Marcaccio, Inc. v. Santurri, 1931, 51 R.I. 440, 155 A. 571; 4 Williston, Contracts § 619 (3d ed. 1961). When Art. 8.3, which speaks only in terms of employee-initiated grievances, incorporates “Any grievance as described above,” that is, all grievances described above, the indication is that the limitation apparent on the face of this article was equally intended for the former. The union’s response is that this indication is contradicted by Art. 8.5, which permits “Any grievance not settled in the grievance procedure” to be submitted to arbitration by “either party.” If there were a necessary inconsistency between Art. 8.5 and the clear language of Arts. 8.3 and 8.4 we would have a serious ambiguity in the agreement. However, we do not so read it. The phrase “Any grievance not settled in the grievance procedure,” as we have said, refers to and relates back to the grievances to which the grievance procedure was applicable. This in no way advances the union’s position. Nor, in our opinion, does the fact that Art. 8.5 permits “either” party to call for arbitration. While at first blush it might be wondered why the company would want to arbitrate an unsettled employee grievance, we find it significant that this agreement is drafted with the intent of handling disagreements in the format of employee-initiated grievances. See, for example, Arts. 14.3(b) and (d). Yet Art. 8.4(b) expressly provides that the union may withdraw a particular grievance without accepting the adverse outcome. The company, however, might wish the matter settled. It could, in such instances, utilize Art. 8.5 to seek arbitration. We lack expertise to know whether, alternatively, the company, in the interest of good relations, might wish to yield to a particular grievance temporarily, but not to do so permanently, and hence not treat the grievance as “settled.” If so, again it could turn to Art. 8.5. We recognize that the strong policy favoring labor arbitration requires doubts to be resolved in favor of arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 1960, 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409. However, where the undertaking in question was in all other respects oriented towards employee grievances only, the mere fact that the agreement contains a clause which might be more broadly construed if it were not limited by specific provisions is not a sufficient ambiguity. Nor is the belief that it would be preferable had the agreement been broader sufficient reason to make it so. That only employee grievances should be arbitrated is not a result absurd on its face. Cf. Boeing Co. v. International Union, 3 Cir., 1967, 370 F.2d 969. Our duty to determine whether under a proper construction of the agreement the parties agreed to arbitrate, Atkinson v. Sinclair Refining Co., 1962, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462; Drake Bakeries, Inc. v. Local 50, American Bakery, etc., Workers, supra, does not require us to do violence to principles of contract interpretation. The stay order is vacated and the case is remanded to the district court for further proceedings. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_source	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. ELLIS v. BURNET, Commissioner of Internal Revenue. No. 5102. Court of Appeals of District of Columbia. Argued April 9, 1931. Decided May 4, 1931. E. L. Bono, of Washington, D. C., for appellant. Sewall Key, R. L. Williams, J. H. Me-Evers, and S. Dee Hanson, all of Washington, D. C., for appellee. Before MARTIN,' Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices. HITZ, Associate Justice. This'is an appeal from a decision of tbe Board .of Tax Appeals redetermining a deficiency in tax due from the petitioner for the year 1923 amounting to $745.37. Petitioner, Wade H. Ellis, is a member of the American Bar Association, and while in attendance on its sessions in 1922, was appointed a member of a special committee to mate a study and report on criminal procedure and law enforcement. ' • In that capacity he expended $2,745.13 expenses on a trip to Europe with other committeemen, studying the subject especially in England and France, as compared with the United States. He claimed deduction of this amount under section 214 (a) of the Revenue Act of 1921 (42 Stat. 239), which provides: “That in computing net income there shall he allowed as deductions: (1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * * ”■ The Commissioner disallowed the item, as did the Board of Tax Appeals, and with their determination we agree. The petitioner’s trip to Europe had ño tendency to increase his professional income, which is apparently contemplated by the statute, unless we consider the too remote effect on his professional prestige of such recognition and activity. The item, if allowable at all, would have been so only to the Bar Association, if the association had paid the expenses of the journey instead of the petitioner. The decision of the Board of Tax Appeals, being without error, is affirmed. Affirmed. Mr. Justice GRONER took no part in the consideration or decision of this ease. Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_appel1_5_2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. 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. The STATE OF GEORGIA et al., Appellants, v. The NATIONAL DEMOCRATIC PARTY et al. No. 71-1018. United States Court of Appeals, District of Columbia Circuit, Argued April 9, 1971. Decided July 23, 1971. Certiorari Denied Oct. 12, 1971. See 92 S.Ct. 109. Mr. Harold N. Hill, Jr., Executive Asst. Atty. Gen. of Georgia, with whom Messrs. Arthur K. Bolton, Atty. Gen., and Robert J. Castellani, Asst. Atty. Gen. of Georgia, were on the brief, for appellants. Mr. John B. Donohue, Jr., Washington, D. C., for appellee Shipley. Mr. Joseph A. Califano, Jr., Washington, D. C., with whom Mr. Alexander E. Bennett, Washington, D. C., was on the brief, for appellees The National Democratic Party, et al. Mr. Fred C. Scribner, Jr., Washington, D. C., of the bar of the Supreme Court of Maine, pro hac vice by special leave of court, with whom Mr. E. Victor Willetts, Jr., Washington, D. C., was on the brief, for appellee Republican National Committee. Mr. Joseph L. Rauh, Jr., Washington, D. C., filed a brief on behalf of Kenneth Bode, et al., amici curiae. Before McGOWAN, TAMM and ROBB, Circuit Judges. PER CURIAM: Appellants here urge that the constitutional principles enunciated in the Supreme Court’s reapportionment cases, beginning with Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and extending through the cases decided during the October, 1970 Term, should be projected by this court into the arena of national party politics. It is argued that the Court’s precedents over the last decade compel the conclusion that the delegate-allocation formulas, utilized by both of the major national political parties to determine the quantum of representation of the various state parties at the 1972 Republican and Democratic National Conventions, are incompatible with the Equal Protection Clause of the Fourteenth Amendment. Thus it is said that the Republican and Democratic Conventions must be reapportioned so that each delegate will represent a segment of the national population as nearly equal as is mathematically possible. Such contentions raise, first, difficult preliminary issues of state action and justiciability bearing upon our power to adjudicate the merits of the complaint; and, second, questions respecting the range of legitimate considerations open to political parties in determining the make-up of their conventions to select Presidential and Vice Presidential nominees. Resolution of the ease before us is possible, however, short of definitive identification and prescription of such considerations. The several reasons for our disposition of the single claim presently pressed upon us are set out hereinafter. I Appellants include the State of Georgia, its Secretary of State, and State Election Board, as well as individual Georgia residents claiming to represent all similarly situated registered voters in that State. Appellees are the National Democratic Party, the Democratic National Committee, the Democratic committeeman and committeewoman for the District of Columbia, and the counterparts of these entities and individuals on the Republican side. On March 25, 1970, appellants filed a complaint in the District Court seeking declaratory and injunctive relief on the ground that the National Conventions of both parties are “malapportioned,” and that only a delegate-allocation formula premised solely on population differences between the states could be squared with the Fourteenth Amendment. The case was heard on cross-motions for summary judgment and motions to dismiss filed by several of the appellees. By Memorandum and Order dated November 24, 1970, the District Court ruled in appellees’ favor, holding both that the issue raised was non justi-ciable and that, on the merits, the allocation formulas did not work invidious discriminations contravening applicable constitutional standards. On appeal to this court, in view of the obvious necessity to resolve, as far as possible, the challenge of the complaint in advance of delegate selections at the state level in preparation for the impending 1972 Conventions, we established an expedited briefing and hearing schedule for the case. Prior to oral argument, the plaintiffs in another action then currently being filed in the District Court, Bode et al. v. National Democratic Party, et al., No. 540-71, filed a motion to intervene or in the alternative to participate as amici curiae. Although the motion to intervene at this stage was denied, in view of the similarity of several issues raised in both cases we granted the request to participate as amici curiae to the extent of filing a brief. While Bode, like this case, represents a challenge to an existing delegate-apportionment formula, it differs in at least two important respects. First, the suit by the Bode plaintiffs, who are Democratic Party members in California, New York, Connecticut, and the District of Columbia, attacks only the constitution of their own Party’s Convention. Second, the allocation principle urged by the Bode plaintiffs — characterized throughout as “one Democrat, one vote” — is substantially different from appellants’ formula founded solely upon population. While the State of Georgia case was under submission in this court, plaintiffs in Bode obtained a favorable ruling in the District Court on June 22, 1971. An appeal from that decision has now been docketed by the Democratic Party defendants, and that appeal is also receiving expedited handling in this court. That case is not before us at the present time and we, of course, express no view as to its merits. II We are confronted at the outset with the task of deciding whether “state action” within the intendment of the Fourteenth Amendment can be found in the delegate-allocation determinations challenged here. Such a finding is a necessary prerequisite to invoking the Equal Protection Clause. While this limiting concept has been defined with increasing liberality in recent years, the issue is not without difficulty where, as here, the activity allegedly violative of the Constitution has been historically viewed as a purely private political matter. Initially, it may be helpful to place clearly in context the level at which state action must be found in this case. We are not concerned here with the question of how convention delegates are chosen by the various states. Our problem is one step removed. It is: On what basis may the national political parties determine how many delegates are to be allotted to each state political party ? In the Republican Party the delegates to the 1968 Convention participated directly in the decision establishing the allocation formula to be applied for the 1972 Convention. The plan was submitted to, and approved by, the Convention delegates during the Convention. In the Democratic Party, on the other hand, the responsibility was delegated to the Party’s National Committee. A special Rules Commission — known as the “O’Hara Commission” — was established at the 1968 Convention and directed to study the methods and criteria used by the Democratic Party in allocating delegates to the states and to suggest reforms. Upon the completion of its study a report was submitted to the National Committee. That body, after considering the Commission report as well as the recommendations of its own Executive Committee, announced the formula to be employed in 1972. With this brief sketch of the Parties’ procedural methods for creating their apportionment formulas in mind, the thrust of appellants’ primary line of reasoning on the state action question becomes apparent. The three-step analysis is developed in the following manner. First, it is argued, the Supreme Court has consistently found state action in the activities of state political parties insofar as those activities touch upon the machinery whereby candidates are nominated by the parties to seek election to local or national office. This is the clear force of the Texas White Primary Cases; and, as those cases and others demonstrate, it makes no difference for purposes of finding state action that the state party acts through a statewide party primary, a state party convention, or a state party committee. Second, logic dictates that a state party’s action in selecting delegates to its national convention is also invested with state action since the delegates’ primary function is the nomination of candidates for the nation’s highest offices. While the few courts that have passed on the precise question — whether the state’s deiepaie-selection processes are imbued with the same quality of state action found in candidate-nomination processes —are divided, we find ourselves in substantial agreement with the conclusion of the District Court in Maxey v. Washington State Democratic Committee, supra note 7, 319 F.Supp. at 678, that the analogy to the eawdídaíe-nomination cases is a close and compelling one. Finally, if the action of the individual state parties in selecting delegates to participate in the presidential-nominating process constitutes state action, the collective activity of all the states’ delegates at the national convention can be no less readily classified as state action. Since the promulgation of each party’s delegate-allocation formula for the next national convention is, as we have indicated, either the direct collective act of the state parties (Republican procedure) or is the responsibility of a body designated by the state parties (Democratic procedure), the precise national party decisions challenged in this ease were, in reality, the decisions of the states acting in concert. Those acts are, therefore, not immune from constitutional scrutiny. Supreme Court cases also suggest a second, related but more generalized, basis for finding state action. The states are responsible for conducting the general elections which determine both the selection of State Electors and, with rare exceptions, how they will vote in the Electoral College. U.S.Const, art. I, § 1; amend. XII. As is the case with regard to the election of members of Congress, the major parties’ nomination procedures play such an important role in the presidential selection process that they can fairly be said to be “integrally related” to the subsequent general elections. The electorate’s choice in the general election is effectively restricted to the nominees of the two parties. By placing the nominees’ names on the ballot, the states, in effect, have adopted this narrowing process as a necessary adjunct of their election procedures. Therefore, every step in the nominating process — especially the crucial determination of how many delegate votes each state party is to be allotted — is as much a product of state action as if the states themselves were collectively to conduct such preliminary conventions. The Supreme Court decisions on which this theory relies, finding state action in the conduct of state primaries because of the integral relationship between primary and general elections (see note 9 supra), arose in one-party states where nomination was indeed tantamount to election. We are unable to perceive, however, how that difference alone can be said to dilute the pertinen-cy of those cases to the situation we now confront. National Convention nominating procedures effectively restrict the electorate to two choices rather than one. Mr. Justice Pitney’s commentary on the realities of the American political process in his frequently quoted concurrence in Newberry v. United States, 256 U.S. 232, 285-286, 41 S.Ct. 469, 484, 65 L.Ed. 913 (1921), has lost none of its relevancy over the last half century: “[I]t seems to me to clear for discussion that primary elections and nominating conventions are * * * closely related to the final election * * . So strong with the great majority of voters are party associations, so potent the party slogan, so effective the party organization, that the likelihood of a candidate succeeding in an election without a party nomination is practically negligible. As a result, every voter comes to the polls on the day of the general election confined in his choice to those few candidates who have received party nominations * . As a practical matter, the ultimate choice of the mass of voters is predetermined when the nominations have been made.” The state action question is not an easy one in view of the widespread assumption that party delegate-allocation decisions are matters entirely within the private domain. Nonetheless, in the absence of further explication by the Supreme Court on this point, we incline to the conclusion that the National Conventions are not so divorced from the activities of the states in conducting presidential elections as to negate the existence of state action. Ill Of course, state action is not in itself a sufficient basis on which to premise the grant of affirmative relief sought by appellants. We must stay our hand, as did the District Court, unless we are able to conclude that the issues raised, in addition to satisfying state action requirements, are justiciable. Justiciability, in the context of this case, raises the troublesome question whether judicial, scrutiny of the National Democratic and Republican Parties’ internal decision-making processes — processes through which delegate seats to their respective Conventions are apportioned among the state parties — requires the courts to “enter upon policy determinations for which judicially manageable standards are lacking.” Baker v. Carr, 369 U.S. 186, 226, 82 S.Ct. 691, 715, 7 L.Ed.2d 663 (1962). Appellees urge that no such standards exist. They claim that judicial intervention in this sensitive area would not only bar the national parties from balancing what they consider to be the multiple legitimate factors in formulating an appropriate delegate-allocation scheme, but would also place them in a strait jacket regarding party representation — a consequence which would be severely inimical to their future vitality. These fears, as we understand them, read too much into the justiciability doctrine. Appel-lees appear to treat as one and the same the finding that judicially manageable standards do exist, on the one hand, and the conclusion, on the other, that mathematical equality is the sole permissible criterion in distributing Convention seats among the states. Such is neither the clear teaching of Baker v. Carr nor the consequence of applying the Equal Protection Clause as developed in the other reapportionment cases. Baker v. Carr, on this score, held only that “[j judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." Id. at 226, 82 S.Ct. at 715 (emphasis supplied). The persistent theme that runs throughout the Supreme Court’s pronouncements is that justiciability is not to be equated with invalidation. It is, rather, the absence of constitutionally permissible justifications for deviations from precise equality that renders apportionment formulas arbitrary and capricious, and thus offensive to the Fourteenth Amendment. It is the lack of a rational basis for drawing distinctions between groups of citizens which leads to judicial imputation of the one man, one vote requirement. In Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), for instance, it was the absence of any valid relationship between the unit system as employed in the Electoral College and the similar utilization of a unit system in county primaries which compelled the conclusion that the resulting discrimination could only be arbitrary and invidious. Similarly, in Reynolds v. Sims, 377 U.S. 533, 571-577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court found that in developing standards for state legislative apportionment the analogy to federal Congressional apportionment was in-apposite. The Court there further concluded that the two alternate schemes proposed to the three-judge District Court by the Alabama Legislature were “completely lacking in rationality.” Id. at 568, 84 S.Ct. at 1362. The lesson of these cases was restated in Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). It was there again held that deviations from equality of voting power may be permissible, but only if they reflect legitimate considerations incident to the effectuation of some rational policy. This principle was most recently applied in Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), where a deviation, from the mathematical norm, of twelve percent in the plan for election of county supervisors was approved. The plan found its legitimation in the locality’s interest in preserving the integrity of its political subdivisions and in the need for “close cooperation between the county and its constituent towns.” Id. at 186, 91 S.Ct. at 1907. The principle which renders the questions raised in this litigation justiciable is that courts are competent to scrutinize the allocation schemes promulgated by the national parties in order to determine whether, given the context of political partisanship out of which such formulas necessarily arise, substantial deviations from equality of voting power at the Conventions are supported by legitimate justifications. We do not underestimate the difficulty of the task. Neither do we think, however, that in light of conventional Fourteenth Amendment analysis, coupled with a full awareness of the important roles played by voluntary political parties in our system of self-government, the courts will be left to face that task in a standardless vacuum. IV Appellants contend that the crucial starting point for this court in its evaluation of the apportionment schemes is to determine whether those schemes are compatible with a population-based one man, one vote test. More precisely, appellants postulate that, insofar as practicable, each delegate to his party’s National Convention must be representative of an equal segment of the national population and that any deviations from that test must be fully justified. For example, according to their theory, since the States of Arizona and West Virginia are of approximately equal population, they must be allowed to send equal numbers of voting delegates to the National Conventions. Under appellants’ formula each of those two States would send 26 delegates to the National Democratic Convention. Each State would also send an undetermined but equal number of delegates to the Republican Convention. Every state would, therefore, have proportionally the same delegate strength at each Party’s Convention. Longstanding local disparities in party strength would no longer be relevant in determining a state party’s voice in its national party. Appellants’ thesis is unacceptable. Even assuming a complete absence of recognizable justifications in the parties’ present allocation formulas for deviations from a rule of equal representation —an assumption we make only for purposes of the instant discussion and without intimating any view whatsoever as to whether such justifications have or have not been shown — the imposition of a population-based criterion would constitute a departure from the equal representation standard underlying the reapportionment cases. While population may be an appropriate measuring rod when public officials are to be elected and held responsible to the entire citizenry, population alone is an inappropriate test of representation in the framework of national politics where parties compete for membership. Although both major parties are constantly striving to garner a greater share of the voting population’s support, neither has yet been so successful as to permit it to claim representation of the entire population. The constituency of each party is significantly smaller than the whole of the eligible electorate, and varies dramatically from state to state and from election to election. For this reason it has never heretofore been thought that (with rare exceptions in one-party states) any delegate to a National Convention could fairly claim to speak for all the voters from his jurisdiction. Quite to the contary, his constituency, if he may be said to represent a constituency, is composed only of the voters within his state who are of like political persuasion. Indeed, responsible representation may require that a delegate vote for a candidate as his party’s nominee whose views are diametrically opposed to the political persuasion of large segments of the population within the delegate’s home state. The fallacy in appellants’ position lies in their misplaced reliance on cases in which local, state, or national officials were elected to perform governmental functions on behalf of the entire electorate in a particular locale. In the political party context, however, the primary function performed by a delegate to a National Convention is to participate in a process leading to the designation of a candidate for national office — a prerogative he exercises on behalf of only a portion of the total local population. Appellants’ argument is reminiscent of Mr. Chief Justice Warren’s dialogue in Reynolds v. Sims, 377 U.S. 533, 562-563, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964), emphasizing by way of parody that “[legislators represent people, not trees or acres,” and that overrepresentation and underrepresentation are the products of a failure to assure that equal numbers of constituents select equal numbers of representatives. It should be too plain to admit of serious doubt that a population index imposed as the sole criterion on Democratic Party delegate selections would lead, on the one hand, to overrepresentation of Democrats residing in states in which the voters are of a heavily Republican persuasion. Likewise it would lead, on the other hand, to underrepresentation of Democrats in the predominantly Democratic states. Such results are the inescapable consequence of using state population statistics as the sole basis for allocating Convention seats among the state parties. In light of this fatal flaw in appellants’ attack, and because of the disproportionate emphasis it has placed on issues other than whether the parties’ apportionment schemes are fair and rational, we deem this case an inappropriate vehicle for further scrutiny of those formulas. Other suits presently pending or yet to be brought may provide the occasion for resolving these matters we find unnecessary to our decision in this case. We do not now anticipate the results properly to be reached on such occasions, since we deal here only with the precise claim advanced by appellants. By the same token, we do not now assert that population may never be an appropriate factor in party convention delegate-allocation. We hold only that, in addition to our conclusions as to state action and justiciability, population alone cannot be the touchstone of the one man, one vote rule as that rule is sought to be applied in the ease before us. The judgment of the District Court is Affirmed. . Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971) ; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) ; Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971). . One of the subsidiary issues in this case is -whether the National Republican Party was properly named and served as a defendant in the District Court. Other Republican defendants below filed a motion to quash service of process or to dismiss ■ the complaint against the “Party” on two grounds. First, they contend that there simply is no unincorporated association known as the National Republican Party. According to their representations, the Republican aggregate is composed only of State Republican Parties, which act in concert during the Convention to conduct national party business. Between the quadrennial conventions the national affairs of the Republican National Convention are handled by the Republican National Committee. Appellants, however, introduced substantial evidence to the contrary in the form of the Party’s rules and by-laws, membership solicitation forms taken from the Party’s magazine, a 1969 Party Membership Card, and, among other items, a cancelled cheek made payable to the Republican Party. We find such evidence persuasive. Second, the Republican appellees contend that, if the Party did exist, service upon it was nonetheless improper. Rule 4(d) (3) of the Federal Rules of Civil Procedure states that service upon an unincorporated association may be made by “delivering a copy of the summons and of the complaint to an officer, [or] a managing or general agent” of the association. Service was made here on an employee of the National Committee at its Washington, D. C. office; and, while the Committee protests that the employee was not one of its own “officers” or “managing or general agents,” it does not challenge the sufficiency of service on itself. Nor do we understand the Committee to argue that, if there is a National Party, the Committee is not its managing or general agent. Based upon these two concessions we find both that service on the Party was properly effected by the unquestioned service on the National Committee in its agency capacity, and that the trial court erred in granting the motion to dismiss. In view of the disposition we make in this case, error in this respect does not necessitate reversal. . See, e. g., Black, The Supreme Court— Foreword, 81 Harv.L.Rev. 69, 95-100 (1967) ; Silard, A Constitutional Forecast : Demise of the “State Action” Limit on the Equal Protection Guarantee, 66 Colum.L.Rev. 855 (1966) ; Williams, The Twilight of State Action, 41 Texas L.Rev. 347 (1963). . Both allocation schemes give weight to such factors as each State’s Electoral College strength, which is partially a function of population, and to prior performance, i. e., the extent to which any State Party has provided support for the Party's candidates in the general elections of the recent past. Consideration of the details of these apportionment formulas is not necessary in resolving this preliminary issue. . Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932) ; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) ; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953). . See, e. g., United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) (party primary) ; Gray v. Sanders, 372 U.S. 368, 374-375, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) (party primary) ; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (state convention) ; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932) (state committee). . Compare Maxey v. Washington State Democratic Committee, 319 F.Supp. 673 (W.D.Wash.1970), appeal docketed, No. 71-1051 (9th Cir., Jan. 12, 1971) (state action found), with Irish v. Democratic-Farmer-Labor Party, 287 F.Supp. 794, 802-03 (D.Minn.) (state action discussed but resolution found unnecessary), aff’d, 399 F.2d 119 (8th Cir. 1968), and Lynch v. Torquato, 343 F.2d 370 (3d Cir. 1965) (no state action in party’s internal affairs ; candidate-nomination question left open), and Smith v. State Exec. Committee, 288 F.Supp. 371, 374 (N.D.Ga.1968) (no state action found). Bee generally Note, One Man, One Vote and Selection of Delegates to National Nominating Conventions, 37 U.Chi.L.Rev. 536, 538-45 (1970) ; Note, Constitutional Safeguards in the Selection of Delegates to Presidential Nominating Conventions, 78 Yale L.J. 1228, 1232-35 (1969). . For a discussion of this state action rationale see, Note, Regulation of Political Parties: Vote Dilution in the Presidential Nomination Procedure, 54 Iowa L.Rev. 471, 476-477 (1968). . See, e. g., United States v. Classic, 313 U.S. 299, 314, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) ; Terry v. Adams, 345 U.S. 461, 469, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) ; Gray v. Sanders, 372 U.S. 368, 380, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). . The “integral relation” rationale is discussed in Note, 37 U.Chi.L.Rev. at 542-544, supra, note 7. . AATe deal here only with the standards aspect of the justiciability doctrine since we apprehend no serious questions with respect to the political question-separation of powers elements. See Powell v. McCormack, 395 U.S. 486, 518-549, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). . See e. g., Avery v. Midland County, 390 U.S. 474, 484, 88 S.Ct. 1114, 1120, 20 L.Ed.2d 45 (1968) (“Tlie Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious.”) ; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) ; Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971). . Consistent with the courts’ long tradition of vigilance in “scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination,” any delegate-allocation formula found to constitute invidious discrimination in terms of such factors as race, religion, sex, or economic status would be subject to judicial invalidation. See e. g., Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971). . According to 1970 Census figures submitted by appellants, Arizona has a population of 1,772,482 and West Virginia has 1,744,237. . See, e. g., Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) ; Calderon v. City of Los Angeles, 4 Cal.3d 251, 93 Cal.Rptr. 361, 481 P.2d 489 (1971). . See Reynolds v. Sims, 377 U.S. 533, 563, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (legislative districting scheme which “gives the same number of representatives to unequal numbers of constituents” offends standards of Equal Protection) (emphasis supplied). . It would seem that Mr. Justice Black’s caveat in Hadley v. Junior College District, 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1970), bears directly on this problem: “It is of course possible that there might be some case in which a State elects certain functionaries whose duties * so disproportionately affect different groups that a popular election * * * might not be required.” (Emphasis supplied.) . See Goldstein, One Man, One Vote and the Political Convention, 40 U.Cin.L.Rev. 1, 29-30 (1971). Insofar as dictum in Maxey v. Washington State Democratic Comm., supra note 7, intimates that “total population” alone could be consistent with a requirement of equal representation to a state party convention in a two-party state, we disagree. . See text at pages 4, 5, 6 supra. Question: This question concerns the first listed appellant. 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_appfiduc	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 "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. TRANSIT CASUALTY COMPANY, a corporation, Plaintiff-Appellee, v. Lora Ruth SNOW, as Administratrix of the Estate of Tanner Snow, Deceased, Defendant-Appellant, v. Gunner HUDSON, Individually and d/b/a Hudson Ambulance Service, et al., Defendants-Appellees. No. 78-1934 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 17, 1978. Rehearing and Rehearing En Banc Denied Dec. 18, 1978. William H. Saliba, Mobile, Ala., for defendant-appellant. Larry U. Sims, Champ Lyons, Jr., Mobile, Ala., for Transit Casualty Co. 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: The outcome of this Alabama diversity case turns on the construction of an automobile liability insurance policy providing coverage for damages for injuries “caused by accident” and arising from the use of the automobile. The automobile was an ambulance. The alleged “accident” was twofold: not taking an injured person to the nearest hospital, and keeping him strapped down in the ambulance so that he drowned in his own fluids. Holding there was no injury “caused by accident” within the meaning of the liability policy, we affirm the declaratory judgment that the insurance company had no duty to defend or pay any judgment rendered in a wrongful death action against its insured. Lora Ruth Snow’s husband, Tanner Snow, was severely injured in an automobile accident and was picked up by defendant Gunner Hudson who operated Hudson Ambulance Service. Hudson did not deliver Snow to the nearest hospital but transported him approximately 45 miles to a hospital where he died. Snow’s widow sued Hudson and his ambulance service alleging that Hudson had (1) negligently, accidentally or wantonly kept Snow strapped on his back despite the fact he was regurgitating and (2) delayed his receiving medical attention by taking him to a distant hospital. Transit Insurance Company had issued Hudson and his business an automobile insurance policy which provided in part: 1. Coverage A — Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile, (emphasis added). Mrs. Snow argues that an injury is accidental where an unexpected result arises from an intended act. See Hartford Fire Insurance Co. v. Blakeney, 340 So.2d 754, 755 (Ala.1976). Because Hudson did not act with the expectation that his actions would produce death, she contends, the death was accidental within the meaning of the policy. Alabama case law suggests to the contrary. To be caused other than “by accident,” death or injury need not be an intended or expected result but merely one which is reasonably foreseeable. In O’Bar v. Southern Life & Health Ins. Co., 232 Ala. 459,168 So. 580, 582-83 (1936), for example, the court affirmed a determination that the insured’s death had not been caused solely through accidental means, as required for indemnification, where he intentionally provoked the attack which killed him, “heedless of the consequences which should have been anticipated.” Similarly, this Court in Thomason v. United States Fidelity & Guaranty Co., 248 F.2d 417, 419 (5th Cir. 1957) determined that it is not sufficient that the actual injury be unexpected, but the cause of injury itself must have been unexpected and accidental. An injury, however unexpected and unforeseen, is not caused by accident, the Court explained, where it results from voluntary and intentional acts and where the ensuing injury is the natural result of those acts. Id. at 419. This interpretation of Alabama law was cited with approval by the Alabama Supreme Court in Armstrong v. Security Insurance Group, 292 Ala. 27, 288 So.2d 134, 136 (1973). See also Hartford Fire Insurance Co. v. Blakeney, 340 So.2d 754, 756 (Ala.1976); Emergency Aid Insurance Co. v. Dobbs, 263 Ala. 594, 83 So.2d 335, 338 (1955). Because Tanner Snow’s injuries were the consequence of Hudson’s intentional acts of strapping Snow down on his back while regurgitating and transporting Snow to a distant hospital despite his severe injuries, the trial court properly determined that the injuries were not “caused by accident,” as required by the policy’s insuring clause. Thus the insurance company had no obligation to defend Hudson or pay on his behalf any damages recovered by Mrs. Snow. Snow also argues the trial court erred in entertaining jurisdiction of this declaratory judgment action because the insurer was without clean hands, having voluntarily dismissed a similar action in state court. No authority was cited in support of this position. The district court’s jurisdiction was properly based on presence of the requisite jurisdictional amount and complete diversity of citizenship, 28 U.S.C.A. § 1332, and the Declaratory Judgment Act, 28 U.S.C.A. § 2201. The argument that no case or controversy exists is equally unpersuasive. The state court pleadings show that Hudson was sued on various allegations. As to one of them, “negligent operation” of a vehicle, the insurance company admitted its obligation to defend and indemnify. This admission in no way affects the controversy over the company’s obligations vis-a-vis the allegations of strapping Snow on his back and delaying his medical treatment. AFFIRMED. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_appel2_7_2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Maurice BUTLER, et al., Petitioners, v. CONTINENTAL WESTERN LINES, A DIVISION OF TRAILWAYS, INC., et al. No. 80-2525. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 28, 1981. Decided Nov. 20, 1981. Theodore E. Lombard, Washington, D. C., for petitioners. •Richard W. Galiher, Jr., Washington, D. C., with whom Richard W. Galiher, William H. Clarke, Frank J. Martell, and William J. Donnelly, Jr., Washington, D. C., were on the brief, for respondents. Before MacKINNON and GINSBURG, Circuit Judges, and PHILIP NICHOLS, Jr., Judge, United States Court of Claims. Sitting by designation pursuant to 28 U.S.C. § 293(a). Opinion PER CURIAM. PER CURIAM: Petitioners, children of deceased worker Samuel Butler, sought death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, made applicable to the District of Columbia by D.C.Code § 36-501. The Act applies in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term “employer” shall be held to mean every person carrying on any employment in the District of Columbia, and the term “employee” shall be held to mean every employee of any such person. An administrative law judge denied the claim on the ground that the jurisdictional requirements of the Act were not met, and the Benefits Review Board, United States Department of Labor, agreed with that conclusion. We affirm the Board’s decision. The employment situation in this case did not bear any substantial connection to the District of Columbia. Therefore petitioners’ claim falls beyond the reach of the Act. See Director, OWCP v. National Van Lines, Inc., 613 F.2d 972, 979-81 (D.C.Cir.1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3049, 65 L.Ed.2d 1136 (1980) (citing and quoting Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S.Ct. 801, 805, 91 L.Ed. 1028 (1947) (reach of the Act is limited to cases presenting “some substantial connection between the District and the particular employee-employer relationship”)). Samuel Butler, the deceased worker, formerly resided in the District of Columbia. He was divorced in 1968 and left the District in 1970. From 1972 until his death in 1976, he resided in California. During the period of his residence in California, he was employed as a bus driver by Continental Western Lines, a division of Trailways, Inc., a Texas corporation. Butler’s employment as a driver for Continental did not bring him within 2,000 miles of the District of Columbia. He died on the job in Canyon City, Colorado. Trailways, Inc. did not, except through corporate subsidiaries, employ anyone in the District of Columbia. Butler was not employed by Trailways or any Trailways affiliate prior to his departure from the District. Petitioners rely upon two factors to connect their claim to the District: three subsidiaries of the Trailways corporate family operate here; Butler’s children reside in the District and are the compensation claimants. The local operations of Trailways subsidiaries could not supply a legitimate basis for District of Columbia regulation of Butler’s west coast employment situation. Butler’s work for Continental never brought him east of the Mississippi and no aspect of his employment was supervised or managed from the District. Cf. Director, OWCP v. Boughman, 545 F.2d 210 (D.C.Cir. 1976) (facts relevant to application of District of Columbia law summarized in Director, OWCP v. National Van Lines, Inc., supra, 613 F.2d at 982) (District Act applied, although deceased employee resided in California, where employer’s national headquarters were in the District and employee, occasionally came here on business relating to his employment). Turning to the District residence of the claimants in this case, we find no authority for the suggestion that employers reasonably may be subjected to the compensation laws, and the obligation to insure, in any place in which their employees may have dependent children. Petitioners’ counsel stresses the clear interest the District has in the welfare of children living here. But counsel was unable to cite any reported case in which the residence of the claimants, when it differed from the residence of the deceased employee, was the connection successfully relied upon to invoke application of a workers’ compensation statute. In sum, we do not think the District’s Compensation Act is so pliable that it can be interpreted to reach an employment relationship as distant from the District- as the one between Continental and Samuel Butler. But even if we could fit petitioners’ claim to the terms of the statute we would hesitate to ascribe to Congress a design to sweep this case within the governance of District of Columbia law, cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), particularly in view, of the constitutional question such an extension of the District’s law would raise. See Cardillo v. Liberty Mutual Insurance Co., supra. For the reasons stated herein, we find no basis for disturbing the administrative decision on review. The order of the Benefits Review Board is accordingly Affirmed. . At argument, petitioners’ counsel confirmed that petitioners have filed a timely claim for workers’ compensation benefits in California. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
sc_casesourcestate	51	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. ESTES v. TEXAS. No. 256. Argued April 1, 1965. Decided June 7, 1965. John D. Cofer and Hume Cofer argued the cause and filed a brief for petitioner. Waggoner Carr, Attorney General of Texas, and Leon Jaworski, Special Assistant Attorney General, argued the cause for respondent. With them on the brief were Hawthorne Phillips, Stanton Stone, Howard M. Fender and Gilbert J. Pena, Assistant Attorneys General, and Alton F. Curry, Special Assistant Attorney General. Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour, Richmond C. Coburn and John H. Yauch for the American Bar Association, and by Norman Dorsen and Melvin L. Wulf for the American Civil Liberties Union et al. Briefs of amici curiae, urging affirmance, were filed by Davis Grant for the State Bar of Texas, joined by Duke W. Dunbar, Attorney General of Colorado; and by Douglas A. Anello, W. Theodore Pierson and Harold David Cohen for the National Association of Broadcasters et al. Mr. Justice Clark delivered the opinion of the Court. The question presented here is whether the petitioner, who stands convicted in the District Court for the Seventh Judicial District of Texas at Tyler for swindling, was deprived of his right under the Fourteenth Amendment to due process by the televising and broadcasting of his trial. Both the trial court and the Texas Court of Criminal Appeals found against the petitioner. We hold to the contrary and reverse his conviction. I. While petitioner recites his claim in the framework of Canon 35 of the Judicial Canons of the American Bar Association he does not contend that we should enshrine Canon 35 in the Fourteenth Amendment, but only that the time-honored principles of a fair trial were not followed in his case and that he was thus convicted without due process of law. Canon 35, of course, has of itself no binding effect on the courts but merely expresses the view of the Association in opposition to the broadcasting, televising and photographing of court proceedings. Likewise, Judicial Canon 28 of the Integrated State Bar of Texas, 27 Tex. B. J. 102 (1964), which leaves to the trial judge’s sound discretion the telecasting and photographing of court proceedings, is of itself not law. In short, the question here is not the validity of either Canon 35 of the American Bar Association or Canon 28 of the State Bar of Texas, but only whether petitioner was tried in a manner which comports with the due process requirement of the Fourteenth Amendment. Petitioner’s case was originally called for trial on September 24, 1962, in Smith County after a change of venue from Reeves County, some 500 miles west. Massive pretrial publicity totaling 11 volumes of press clippings, which are on file with the Clerk, had given it national notoriety. All available seats in the courtroom were taken and some 30 persons stood in the aisles. However, at that time a defense motion to prevent telecasting, broadcasting by radio and news photography and a defense motion for continuance were presented, and after a two-day hearing the former was denied and the latter granted. These initial hearings were carried live by both radio and television, and news photography was permitted throughout. The videotapes of these hearings clearly illustrate that the picture presented was not one of that judicial serenity and calm to which petitioner was entitled. Cf. Wood v. Georgia, 370 U. S. 375, 383 (1962); Turner v. Louisiana, 379 U. S. 466, 472 (1965); Cox v. Louisiana, 379 U. S. 559, 562 (1965). Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge’s bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. Moreover, veniremen had been summoned and were present in the courtroom during the entire hearing but were later released after petitioner’s motion for continuance had been granted. The court also had the names of the witnesses called; some answered but the absence of others led to a continuance of the case until October 22, 1962. It is contended that this two-day pretrial hearing cannot be considered in determining the question before us. We cannot agree. Pretrial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence. Though the September hearings dealt with motions to prohibit television coverage and to postpone the trial, they are unquestionably relevant to the issue before us. All of this two-day affair was highly publicized and could only have impressed those present, and also the community at large, with the notorious character of the petitioner as well as the proceeding. The trial witnesses present at the hearing, as well as the original jury panel, were undoubtedly made aware of the peculiar public importance of the case by the press and television coverage being provided, and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show. When the case was called for trial on October 22 the scene had been altered. A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting. Because of continual objection, the rules governing live telecasting, as well as radio and still photos, were changed as the exigencies of the situation seemed to require. As a result, live telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury’s verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner, the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury.' Because of the varying restrictions placed on sound and live telecasting the telecasts of the trial were confined largely to film clips shown on the stations’ regularly scheduled news programs. The news commentators would use the film of a particular part of the day’s trial activities as a backdrop for their reports. Their commentary included excerpts from testimony and the usual reportorial remarks. On one occasion the videotapes of the September hearings were rebroadcast in place of the “late movie.” II. In Rideau v. Louisiana, 373 U. S. 723 (1963), this Court constructed a rule that the televising of a defendant in the act of confessing to a crime was inherently invalid under the Due Process Clause of the Fourteenth Amendment even without a showing of prejudice or a demonstration of the nexus between the televised confession and the trial. See id., at 729 (dissenting opinion of Clark, J.). Here, although there was nothing so dramatic as a home-viewed confession, there had been a bombardment of the community with the sights and sounds of a two-day hearing during which the original jury panel, the petitioner, the lawyers and the judge were highly publicized. The petitioner was subjected to characterization and minute electronic scrutiny to such an extent that at one point the photographers were found attempting to picture the page of the paper from which he was reading while sitting at the counsel table. The two-day hearing and the order permitting television at the actual trial were widely known throughout the community. This emphasized the notorious character that the trial would take and, therefore, set it ap.art in the public mind as an extraordinary case or, as Shaw would say, something “not conventionally unconventional.” When the new jury was empaneled at the trial four of the jurors selected had seen and heard all or part of the broadcasts of the earlier proceedings. III. We start with the proposition that it is a “public trial” that the Sixth Amendment guarantees to the “accused.” The purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned. History had proven that secret tribunals were effective instruments of oppression. As our Brother Black so well said in In re Oliver, 333 U. S. 257 (1948): “The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. . . . Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.” At 268-270. (Footnotes omitted.) It is said, however, that the freedoms granted in the First Amendment extend a right to the news media to televise from the courtroom, and that to refuse to honor this privilege is to discriminate between the newspapers and television. This is a misconception of the rights of the press. The free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences, including court proceedings. While maximum freedom must be allowed the press in carrying on this important function in a democratic society its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process. While the state and federal courts have differed over what spectators may be excluded from a criminal trial, 6 Wigmore, Evidence § 1834 (3d ed. 1940), the amici curiae brief of the National Association of Broadcasters and the Radio Television News Directors Association, says, as indeed it must, that “neither of these two amendments [First and Sixth] speaks of an unlimited right of access to the courtroom on the part of the broadcasting media . . . .” At 7. Moreover, they recognize that the “primary concern of all must be the proper administration of justice”; that “the life or liberty of any individual in this land should not be put in jeopardy because of actions of any news media”; and that “the due process requirements in both the Fifth and Fourteenth Amendments and the provisions of the Sixth Amendment require a procedure that will assure a fair trial . . . .” At 3-4. Nor can the courts be said to discriminate where they permit the newspaper reporter access to the courtroom. The television and radio reporter has the same privilege. All are entitled to the same rights as the general public. The news reporter is not permitted to bring his typewriter or printing press. When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial we will have another case. IV. Court proceedings are held for the solemn purpose of endeavoring to ascertain the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function. As a result, at this time those safeguards do not permit the televising and photographing of a criminal trial, save in two States and there only under restrictions. The federal courts prohibit it by specific rule. This is weighty evidence that our concepts of a fair trial do not tolerate such an indulgence. We have always held that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs. Our approach has been through rules, contempt proceedings and reversal of convictions obtained under unfair conditions. Here the remedy is clear and certain of application and it is our duty to continue to enforce the principles that from time immemorial have proven efficacious and necessary to a fair trial. y. The State contends that the televising of portions of a criminal trial does not constitute a denial of due process. Its position is that because no prejudice has been shown by the petitioner as resulting from the televising, it is permissible; that claims of “distractions” during the trial due to the physical presence of television are wholly unfounded; and that psychological considerations are for psychologists, not courts, because they are purely hypothetical. It argues further that the public has a right to know what goes on in the courts; that the court has no power to “suppress, edit, or censor events which transpire in proceedings before it,” citing Craig v. Harney, 331 U. S. 367, 374 (1947); and that the televising of criminal trials would be enlightening to the public and would promote greater respect for the courts. At the outset the notion should be dispelled that telecasting is dangerous because it is new. It is true that our empirical knowledge of its full effect on the public, the jury or the participants in a trial, including the judge, witnesses and lawyers, is limited. However, the nub of the question is not its newness but, as Mr. Justice Douglas says, “the insidious influences which it puts to work in the administration of justice.” Douglas, The Public Trial and the Free Press, 33 Rocky Mt. L. Rev. 1 (1960). These influences will be detailed below, but before turning to them the State’s argument that the public has a right to know what goes on in the courtroom should be dealt with. It is true that the public has the right to be informed as to what occurs in its courts, but reporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in- open court through their respective media. This was settled in Bridges v. California, 314 U. S. 252 (1941), and Pennekamp v. Florida, 328 U. S. 331 (1946), which we reaffirm. These reportorial privileges of the press were stated years ago: “The law, however, favors publicity in legal proceedings, so far as that object can be attained without injustice to the persons immediately concerned. The public are permitted to attend nearly all judicial inquiries, and there appears to be no sufficient reason why they should not also be allowed to see in print the reports of trials, if they can thus have them presented as fully as they are exhibited in court, or at least all the material portion of the proceedings impartially stated, so that one shall not, by means of them, derive erroneous impressions, which he would not have been likely to receive from hearing the trial itself.” 2 Cooley’s Constitutional Limitations 931-932 (Carrington ed. 1927). The State, however, says that the use of television in the instant case was “without injustice to the person immediately concerned,” basing its position on the fact that the petitioner has established no isolatable prejudice and that this must be shown in order to invalidate a conviction in these circumstances. The State paints too broadly in this contention, for this Court itself has found instances in which a showing of actual prejudice is not a prerequisite to reversal. This is such a case. It is true that in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process. Such a case was In re Murchison, 349 U. S. 133 (1955), where Mr. Justice Black for the Court pointed up with his usual clarity and force: “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. . . . [T]o perform its high function in the best way ‘justice must satisfy the appearance of justice.’ Offutt v. United States, 348 U. S. 11, 14.” At 136. (Emphasis supplied.) And, as Chief Justice Taft said in Tumey v. Ohio, 273 U. S. 510, almost 30 years before: “the requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice. Every procedure which would offer a possible temptation to the average man ... to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” At 532. (Emphasis supplied.) This rule was followed in Rideau, supra, and in Turner v. Louisiana, 379 U. S. 466 (1965). In each of these cases the Court departed from the approach it charted in Stroble v. California, 343 U. S. 181 (1952), and in Irvin v. Dowd, 366 U. S. 717 (1961), where we made a careful examination of the facts in order to determine whether prejudice resulted. In Rideau and Turner the Court did not stop to consider the actual effect of the practice but struck down the conviction on the ground that prejudice was inherent in it. Likewise in Gideon v. Wainwright, 372 U. S. 335 (1963), and White v. Maryland, 373 U. S. 59 (1963), we applied the same rule, although in different contexts. In this case it is even clearer that such a rule must be applied. In Rideau, Irvin and Stroble, the pretrial publicity occurred outside the courtroom and could not be effectively curtailed. The only recourse other than reversal was by contempt proceedings. In Turner the probability of prejudice was present through the use of deputy sheriffs, who were also witnesses in the case, as shepherds for the jury. No prejudice was shown but the circumstances were held to be inherently suspect, and, therefore, such a showing was not held to be a requisite to reversal. Likewise in this case the application of this principle is especially appropriate. Television in its present state and by its very nature, reaches into a variety of areas in which it may cause prejudice to an accused. Still one cannot put his finger on its specific mischief and prove with particularity wherein he was prejudiced. This was found true in Murchison, Tumey, Rideau and Turner. Such untoward circumstances as were found in those cases are inherently bad and prejudice to the accused was presumed. Forty-eight of our States and the Federal Rules have deemed the use of television improper in the courtroom. This fact is most telling in buttressing our conclusion that any change in procedure which would permit its use would be inconsistent with our concepts of due process in this field. VI. As has been said, the chief function of our judicial machinery is to ascertain the truth. The use of television, however, cannot be said to contribute materially to this objective. Rather its use amounts to the injection of an irrelevant factor into court proceedings. In addition experience teaches that there are numerous situations in which it might cause actual unfairness — some so subtle as to defy detection by the accused or control by the judge. We enumerate some in summary: 1. The potential impact of television on the jurors is perhaps of the greatest significance. They are the nerve center of the fact-finding process. It is true that in States like Texas where they are required to be sequestered in trials of this nature the jurors will probably not see any of the proceedings as televised from the courtroom. But the inquiry cannot end there. From the moment the trial júdge announces that a case will be televised it becomes a came célebre. The whole community, including prospective jurors, becomes interested in all the morbid details surrounding it. The approaching trial immediately assumes an important status in the public press and the accused is highly publicized along with the offense with which he is charged. Every juror carries with him into the jury box these solemn facts and thus increases the chance of prejudice that is present in every criminal case. And we must remember that realistically it is only the notorious trial which will be broadcast, because of the necessity for paid sponsorship. The conscious or unconscious effect that this may have on the juror’s judgment cannot be evaluated, but experience indicates that it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence. Where pretrial publicity of all kinds has created intense public feeling which is aggravated by the telecasting or picturing of the trial the televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them. If the community be hostile to an accused a televised juror, realizing that he must return to neighbors who saw the trial themselves, may well be led “not to hold the balance nice, clear and true between the State and the accused . . . .” Moreover, while it is practically impossible to assess the effect of-television, on jury attentiveness, those of us who know juries realize the problem of jury “distraction.” The State argues this is de minimis since the physical disturbances have been eliminated. But we know that distractions are not caused solely by the physical presence of the camera and its telltale red lights. It is the awareness of the fact of telecasting that is felt by the juror throughout the trial. We are all self-conscious and uneasy when being televised. Human nature being what it is, not only will a juror’s eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony. Furthermore, in many States the jurors serving in the trial may see the broadcasts of the trial proceedings. Admittedly, the Texas sequestration rule would prevent this occurring there. In other States following no such practice jurors would return home and turn on the TV if only to see how they appeared upon it. They would also be subjected to re-enactment and emphasis of the selected parts of the proceedings which the requirements of the broadcasters determined would be telecast and would be subconsciously influenced the more by that testimony. Moreover, they would be subj ected to the broadest commentary and criticism and perhaps the well-meant advice of friends, relatives and inquiring strangers who recognized them on the streets. Finally, new trials plainly would be jeopardized in that potential jurors will often have seen and heard the original trial when it was telecast. Yet viewers may later be called upon to sit in the jury box during the new trial. These very dangers are illustrated in this case where the court, due to the defendant’s objections, permitted only the State’s opening and closing arguments to be broadcast with sound to the public. 2. The quality of the testimony in criminal trials will often be impaired. The impact upon a witness of the knowledge that he is being viewed by a vast audience is simply incalculable. Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. Embarrassment may impede the search for the truth, as may a natural tendency toward overdramatization. Furthermore, inquisitive strangers and “cranks” might approach witnesses on the street with jibes, advice or demands for explanation of testimony. There is little wonder that the defendant cannot “prove” the existence of such factors. Yet we all know from experience that they exist. In addition the invocation of the rule against witnesses is frustrated. In most instances witnesses would be able to go to their homes and view broadcasts of the day’s trial proceedings, notwithstanding the fact that they had been admonished not to do so. They could view and hear the testimony of preceding witnesses, and so shape their own testimony as to make its impact crucial. And even in the absence of sound, the influences of such viewing on the attitude of the witness toward testifying, his frame of mind upon taking the stand or his apprehension of withering cross-examination defy objective assessment. Indeed, the mere fact that the trial is to be televised might render witnesses reluctant to appear and thereby impede the trial as well as the discovery of the truth. While some of the dangers mentioned above are present as well in newspaper coverage of any important trial, the circumstances and extraneous influences intruding upon the solemn decorum of court procedure in the televised trial are far more serious than in cases involving only newspaper coverage. 3. A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention.. Still when television comes into the courtroom he must also supervise it. In this trial, for example, the judge on several different occasions — aside from the two days of pretrial — was obliged to have a hearing or enter an order made necessary solely because of the presence of television. Thus, where telecasting is restricted as it was here, and as even the State concedes it must be, his task is made much more difficult and exacting. And, as happened here, such rulings may unfortunately militate against the fairness of the trial. In addition, laying physical interruptions aside, there is the ever-present distraction that the mere awareness of television’s presence prompts. Judges are human beings also and are subject to the same psychological reactions as laymen. Telecasting is particularly bad where the judge is elected, as is the case in all save a half dozen of our States. The telecasting of a trial becomes a political weapon, which, along with other distractions inherent in broadcasting, diverts his attention from the task at hand — the fair trial of the accused. But this is not all. There is the initial decision that must be made as to whether the use of television will be permitted. This is perhaps an even more crucial consideration. Our judges are high-minded men and women. But it is difficult to remain oblivious to the pressures that the news media can bring to bear on them both directly and through the shaping of public opinion. Moreover, where one judge in a district or even in a State permits telecasting, the requirement that the others do the same is almost mandatory. Especially is this true where the judge is selected at the ballot box. 4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its presence is a form of mental — if not physical — harassment, resembling a police line-up or the third degree. The inevitable close-ups of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him- — sometimes the difference between life and death— dispassionately, freely and without the distraction of wide public surveillance. A defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a city or nationwide arena. The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice. Trial by television is, therefore, foreign to our system. Furthermore, telecasting may also deprive an accused of effective counsel. The distractions, intrusions into confidential attorney-client relationships and the temptation offered by television to play to the public audience might often have a direct effect not only upon the lawyers, but the judge, the jury and the witnesses. See Pye, The Lessons of Dallas— Threats to Fair Trial and Free Press, National Civil Liberties Clearing House, 16th Annual Conference. The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public. While our telecasters are honorable men, they too are human. The necessity for sponsorship weighs heavily in favor of the televising of only notorious cases, such as this one, and invariably focuses the lens upon the unpopular or infamous accused. Such a selection is necessary in order to obtain a sponsor willing to pay a sufficient fee to cover the costs and return a profit. We have already examined the ways in which public sentiment can affect the trial participants. To the extent that television shapes that sentiment, it can strip the accused of a fair trial. The State would dispose of all these observations with the simple statement that they are for psychologists because they are purely hypothetical. But we cannot afford the luxury of saying that, because these factors are difficult of ascertainment in particular cases, they must be ignored. Nor are they “purely hypothetical.” They are no more hypothetical than were the considerations deemed controlling in Tumey, Murchison, Rideau and Turner. They are real enough to have convinced the Judicial Conference of the United States, this Court and the Congress that television should be barred in federal trials by the Federal Rules of Criminal Procedure; in addition they have persuaded all but two of our States to prohibit television in the courtroom. They are effects that may, and in some combination almost certainly will, exist in any case in which television is injected into the trial process. VII. The facts in this case demonstrate clearly the necessity for the application of the rule announced in Rideau. The sole issue before the court for two days of pretrial hearing was the question now before us. The hearing was televised live and repeated on tape in the same evening, reaching approximately 100,000 viewers. In addition, the courtroom was a mass of wires, television cameras, microphones and photographers. The petitioner, the panel of prospective jurors, who were sworn the second day, the witnesses and the lawyers were all exposed to this untoward situation. The judge decided that the trial proceedings would be telecast. He announced no restrictions at the time. This emphasized the notorious nature of the coming trial, increased the intensity of the publicity on the petitioner and together with the subsequent televising of the trial beginning 30 days later inherently prevented a sober search for the truth. This is underscored by the fact that the selection of the jury took an entire week. As might be expected, a substantial amount of that time was devoted to ascertaining the impact of the pretrial televising on the prospective jurors. As we have noted, four of the jurors selected had seen all or part of those broadcasts. The trial, on the other hand, lasted only three days. Moreover, the trial judge was himself harassed. After the initial decision to permit telecasting he apparently decided that a booth should be built at the broadcasters’ expense to confine its operations; he then decided to limit the parts of the trial that might be televised live; then he decided to film the testimony of the witnesses without sound in an attempt to protect those under the rule; and finally he ordered that defense counsel and their argument not be televised, in the light of their objection. Plagued by his original error — recurring each day of the trial— his day-to-day orders made the trial more confusing to the jury, the participants and to the viewers. Indeed, it resulted in a public presentation of only the State’s side of the case. As Mr. Justice Holmes said in Patterson v. Colorado, 205 U. S. 454, 462 (1907): “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials. But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore Reversed. Mr. Justice Harlan concurs in this opinion subject to the reservations and to the extent indicated in his concurring opinion, post,p. 587. The evidence indicated that petitioner, through false pretenses and fraudulent representations, induced certain farmers to purchase fertilizer tanks and accompanying equipment, which in fact did not exist, and to sign and deliver to him chattel mortgages on the fictitious property. Due to mechanical difficulty there was no picture during the opening argument. Only six States, in addition to Texas, require sequestration of the jury prior to its deliberations in a non-capital felony trial. The great majority of jurisdictions leave the matter to the trial judge’s discretion, while in at least one State the jury will be kept together in such circumstances only upon a showing of cause by the defendant. N. Y. Times, Sept. 25, 1962, p. 46, col. 4. See Appendix, Photographs 1, 2, 3. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellant, v. YOUNG ELECTRIC SIGN COMPANY, a corporation, Appellee. No. 7095. United States Court of Appeals Tenth Circuit. Feb. 19, 1963. Jacob I. Karro, Washington, D. C. (Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor, Sigmund R. Balka, and Kenneth C. Robertson, Regional Attorney, on the brief), for appellant. Earl D. Tanner, Salt Lake City, Utah, for appellee. Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges. LEWIS, Circuit Judge. Appellant, plaintiff below, seeks to set aside an adverse judgment entered by the District Court for the District of Utah sua sponte at the conclusion of a pre-trial conference. The judgment denied injunctive relief sought by the Secretary of Labor under a complaint alleging repeated and continuing violations by the defendant company of sections 15(a) (4) and 15(a) (5) of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The judgment recited and provided: “ * * * At the pre-trial hearing counsel for defendant represented to the court that the claimed violations set forth by plaintiff had ceased to exist, that they had been voluntarily remedied by defendant prior to the commencement of this suit, and that : there was no intent on the part of the defendant to violate the Fair Labor Standards Act of 1938 now or in future. In reply to inquiry by the Court, counsel for plaintiff stated that plaintiff had no evidence that violations existed at the time of the . filing of the complaint herein or now and that plaintiff knew of no proof which it proposed to adduce at trial showing a present intent on the part of defendant to violate the Fair Labor Standards Act in future. “The Court, having been fully advised in the premises, it is hereby “Ordered, Adjudged and Decreed:. “1. That defendant have judgment of no cause of action herein. “Dated this 17 day of May, 1962.” Summary disposition of a cause may logically and properly follow a pre-trial conference when the pre-trial procedures disclose the lack of a disputed issue of material fact and the facts so established indicate an unequivocal right to judgment favoring a party. Holcomb v. Aetna Life Insurance Company, 10 Cir., 255 F.2d 577; Berger v. Brannan, 10 Cir., 172 F.2d 241. And in certain instances we believe that summary procedures may properly be applied when the granting or withholding of injunctive relief is discretionary with the court upon consideration of undisputed facts. But the basis of every judgment must be so reflected in the record as to make it capable of intelligent appellate review. The First National Bank of Fort Smith, Arkansas v. H. E. Mattingly, 10 Cir., 312 F.2d 603; Woods Construction Company, Inc. v. Pool Construction Company, 10 Cir., 314 F.2d 405; United States v. Horsfall, 10 Cir., 270 F.2d 107. We cannot determine from the record before us the basis in law or fact for the subject judgment. The judgment recites that “the claimed violations” of the Fair Labor Standards Act by the defendant company had all been remedied long prior to the time of pre-trial conference and the company was in current compliance with the provisions of the Act. This premise was justified as counsel for the company so represented and government counsel admitted they had no evidence to the contrary. However, if the trial court based its judgment of no cause of action upon a conclusion of law that present compliance is a complete bar to injunctive relief sought by the Secretary upon claim of earlier violations and that the occurrence of such violations is thus an immaterial fact, such judgment is clearly erroneous in law. Injunctive relief may be, and often is, a proper and indicated remedy even though an employer may have remedied conditions violating the Act and may be in current compliance. Walling v. Helmerich & Payne, 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29; Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102, 105; Walling v. Fairmount Creamery Co., 8 Cir., 139 F. 2d 318, 321-323; McComb v. Wyandotte Furniture Co., 8 Cir., 169 F.2d 766, 770. ■ [6,7] The judgment may, however, reflect a subjective view of the trial judge that proof of the “claimed” violations of the Act, though a disputed issue of fact, would not affect the judgment result and that injunctive relief would be denied, on the merits and as a matter of discretion, even if the Secretary proved each and all of the violations. If so premised, the judgment is faulty for summary disposition requires the total absence of a disputed material issue of fact. The number, nature and extent of violations under the Fair Labor Standards Act is the factor determinative of the necessity or lack of necessity of protecting the public interest by judicial decree. Absent a finding upon this material issue appellate review is impossible. The tenor of the pre-trial procedures is such as to suggest the possibility, though remote, of a third premise for the judgment. The trial judge may have interpreted statements made at pre-trial by counsel for the defendant as constituting unqualified admissions of the occurrence of all the violations alleged. Counsel makes no such admission in his presentation to this court and if such be the premise for the judgment its uncertainty is apparent. The judgment is vacated and the case remanded for further proceedings in accordance with the views expressed herein. . Compliance with Rule 56 is the desirable procedure for consideration of summary disposition and gives the parties full opportunity for understanding of the basis of judgment. Although the appropriateness of summary disposition may be indicated as the result of a pre-trial conference held under Rule 16, this rule contemplates further procedural steps before final disposition. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_respond1_3_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. CHIN SHUE TEUNG v. TILLINGHAST, U. S. Commissioner of Immigration. Circuit Court of Appeals, First Circuit. May 31, 1929. No. 2326. Walter Bates Farr, of Boston, Mass. (E. F. Damon, of Boston, Mass., on the brief), for appellant. John W. Sehenek, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S-Atty., of Boston, Mass., on the brief), for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. This case presents the familiar jurisdictional question whether the immigration authorities who excluded the applicant, because not satisfied as to his relationship as the son of an American citizen, had substantial evidence on which to base their contention. The court below dismissed the petition. The applicant is a boy twelve years old. He first testified that his father died in October or November, 1926, in the United States, and that he never saw his father. Later he changed this testimony, testifying that his father died in his own house in China where the boy was living, and that he had seen him. The court below was correct in holding that this discrepancy alone was enough to warrant the conclusion of the immigration authorities that the alleged relationship was not made out. There were other substantial discrepancies on matters pertinent to the issue of relationship. The decision of the court below that the courts have no jurisdiction must be affirmed. The decree of the District Court is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
songer_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. DURHAM INDUSTRIES, INC., Plaintiff-Appellee, v. TOMY CORPORATION, Defendant-Appellant. No. 639, Docket 79-7752. United States Court of Appeals, Second Circuit. Argued March 27, 1980. Decided Sept. 2, 1980. Lewis H. Eslinger, New York City (Stuart A. White, James D. Fornari, Curtis, Morris & Safford, P. C., New York City, F. David LaRiviere, Carson, California, Mori & Ota, Los Angeles, Cal., of counsel), for defendant-appellant. James M. Rhodes, Jr., New York City (John M. Calimafde, Michael Ebert, Hop-good, Calimafde, Kalil, Blaustein & Lieberman, New York City, of counsel), for plaintiff-appellee. Before FRIENDLY and MESKILL, Circuit Judges, and THOMSEN, District Judge. Honorable Roszel C. Thomsen, United States District Judge for the District of Maryland, sitting by designation. MESKILL, Circuit Judge: Appellant Tomy Corporation and appellee Durham Industries, Inc. are American companies engaged in the manufacture and sale of toys. In January of 1979, counsel for Tomy accused Durham of systematically copying certain Tomy toys and threatened to take legal action if the matter was not immediately resolved by other means. Evidently believing that the best defense is a good offense, in February of 1979 Durham filed an action against Tomy in the United States District Court for the Southern District of New York seeking a declaratory judgment to the effect that in marketing its line of toys Durham had violated no legal rights of Tomy. In response, Tomy asserted nine counterclaims against Durham: eight counterclaims alleging copyright infringement in regard to eight specified toys and the ninth counterclaim alleging unfair competition under both the Lanham Act, 15 U.S.C. § 1125(a), and state law, in regard to the same eight Tomy products. After some preliminary skirmishing between the parties, Durham moved for and was granted summary judgment dismissing all nine counterclaims. Viewing the dismissal of Tomy’s counterclaims as a de facto and satisfactory resolution of the entire controversy, Durham voluntarily dismissed its declaratory judgment action. Claiming that the dismissal of its counterclaims was erroneous, Tomy has appealed. For purposes of discussion the eight pairs of toys involved in this case may be grouped into two categories: the Disney figures, of which there are three pairs, and the miscellaneous toys, of which there are five pairs. In analyzing the Disney figure counterclaims we have focused on the threshold issue of copyright validity;, our analysis of the counterclaims involving the miscellaneous toys centers on the very different issue of copyright infringement. THE DISNEY FIGURES Tomy claims to hold copyrights on three wind-up plastic figures, each about three inches in height and each capable of locomotion, which are instantly recognizable as the Disney characters Mickey Mouse, Donald Duck and Pluto Dog. Durham has manufactured and distributed virtually indistinguishable versions of these three Disney figures, and Durham concedes that in making these toys it used Tomy’s Disney figures as models. Tomy asserts that Durham has thereby infringed upon Tomy’s exclusive right to copy its own creations. Before asking a court to consider the question of infringement, a party must demonstrate the existence and the validity of its copyright, for in the absence of copyright (or patent, trademark, or state law) protection, even original creations are in the public domain and may be freely copied. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Compeo Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964); see also Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). In many cases, the existence of a valid copyright can be established by the introduction into evidence of a Copyright Office certificate of registration. Such a certificate, if timely obtained, “constitute[s] prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C. § 410(c) (Copyright Act of 1976); cf. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n.1 (2d Cir. 1977) (certificate given same effect under 1909 Copyright Act); see 3 M. Nimmer on Copyright § 12.11 (1980) (“Nimmer”). It is clear, however, that a certificate of registration creates no irrebuttable presumption of copyright validity. Where other evidence in the record casts doubt on the question, validity will not be assumed. In the instant case, the evidence that raises-and we think necessitates an adverse determination of-the issue of the validity of Tomy’s copyrights on its three Disney figures is the mute testimony of Mickey, Donald and Pluto themselves. One look at Tomy’s figures reveals that, in each, the element of originality that is necessary to support a valid copyright is totally lacking. For half a century or so Disney’s characters have peered at us from movie screens, comic books, television sets, posters, clothing, watches, dolls, and a variety of other media, and it would be safe to say that they have a recognition factor that any politician or celebrity would envy. See Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1171 (9th Cir. 1977) (Mickey Mouse recognized worldwide); Walt Disney Productions v. Air Pirates, 345 F.Supp. 108 (N.D.Cal.1972) (Disney characters instantly recognizable), aff’d in part, 581 F.2d 751 (9th Cir. 1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979). The three Tomy figures are instantly identifiable as embodiments of the Disney characters in yet another form: Mickey, Donald and Pluto are now represented as small, plastic, wind-up toys. Neither party contests the fact that Walt Disney created the three characters at issue. Tomy acknowledges Disney’s ownership of copyrights on these characters and concedes that without a license from Disney Tomy’s publication of its Disney figures would constitute infringement. That Tomy’s creations are derivative works is in itself, of course, no bar to copyrightability. Derivative works are explicitly included in the subject matter of copyright as defined by the Copyright Act. 17 U.S.C. § 103. But this principle is subject to two important and related limitations. First, to support a copyright the original aspects of a derivative work must be more than trivial. Second, the scope of protection afforded a derivative work must reflect the degree to which it relies on preexisting material and must not in any way affect the scope of any copyright protection in that preexisting material. Thus the only aspects of Tomy’s Disney figures entitled to copyright protection are the non-trivial, original features, if any, contributed by the author or creator of these derivative works. In L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) (en banc), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976), we discussed at length the concepts of originality and triviality as they applied to a derivative work based on an article in the public domain. In that case, we held appellant’s plastic Uncle Sam bank, a derivative work based on similar banks in the public domain, insufficiently original to support a copyright. Although in the instant case the preexisting works are themselves the subjects of copyrights and are therefore not in the public domain, the standard announced in Batlin by which the copyrightability of a derivative work is to be determined is fully applicable. The analysis in Baffin started from the premise that “ ‘the one pervading element prerequisite to copyright protection regardless of the form of the work’ is the requirement of originality-that the work be the original product of the claimant.” Id. at 489-90 (quoting § 10 of 1975 edition of Nimmer; see 1 Nimmer § 2.01 at 2-5). At least since Chamberlin v. Uris Sales Corp., 150 F.2d 512 (2d Cir. 1945), we have interpreted this requirement — which is rooted in the Constitution-to mean that to be copyrightable a work must “containQ some substantial, not merely trivial, originality . . . .” Id. at 513. Although novelty, uniqueness and ingenuity are not required, independent creation is. Batlin, 536 F.2d at 490. Accord, Donald v. Zack Meyer’s T.V. Sales and Service, 426 F.2d 1027, 1029-30 (5th Cir. 1970), cert. denied, 400 U.S. 992, 91 S.Ct. 459, 27 L.Ed.2d 441 (1971). Independent creation, in turn, means that a work must not consist of actual copying. Batlin, 536 F.2d at 490, citing Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951). This test of originality, which has been aptly characterized as “modest,” “minimal,” and as establishing a “low threshold,” is the sine qua non of copyrightability. Batlin, 536 F.2d at 490, citing Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315, 316 (2d Cir. 1970), and Nimmer; see Puddu v. Buonamici Statuary, Inc., 450 F.2d 401, 402 (2d Cir. 1971) (“modest”); Thomas Wilson & Co. v. Irving J. Dorfman Co., 433 F.2d 409, 411 (2d Cir. 1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971) (“modest at best”); Millworth Converting Corp. v. Slifka, 276 F.2d 443, 445 (2d Cir. 1960) (“modest”); see also Dan Kasoff, Inc. v. Novelty Jewelry Co., 309 F.2d 745, 746 (2d Cir. 1962) (“faint trace” of originality required). Particularly important for decision of the case before us is the explicit rejection in Baffin of the contention that the originality requirement of copyrightability can be satisfied by the mere reproduction of a work of art in a different medium, or by the demonstration of some “physical” as opposed to “artistic” skill. Batlin, 536 F.2d at 491, declining to follow contrary holding in Doran v. Sunset House Distributing Corp., 197 F.Supp. 940, 944 (S.D.Cal.1961), aff’d, 304 F.2d 251 (9th Cir. 1962) (first reproduction of traditional Santa Claus character in three-dimensional form and plastic medium held sufficiently original to support copyright). Thus, the mere reproduction of the Disney characters in plastic, even though the adaptation of the preexisting works to this medium undoubtedly involved some degree of manufacturing skill, does not constitute originality as this Court has defined the term. Tomy has demonstrated, and the toys themselves reflect, no independent creation, no distinguishable variation from preexisting works, nothing recognizably the author’s own contribution that sets Tomy’s figures apart from the prototypical Mickey, Donald, and Pluto, authored by Disney and subsequently represented by Disney or its licensees in a seemingly limitless variety of forms and media. Batlin, 536 F.2d at 490; Alfred Bell & Co. v. Catalda Fine Arts, Inc., supra, 191 F.2d at 102-03, 105. As we noted in Baffin, “[t]o extend copyrightability to minuscle variations would simply put a weapon for harassment in the hands of mischievous copiers . . . .” 536 F.2d at 492. In that case, our concern was with the appropriation and monopolization of work in the public domain. In the instant case, our concern is with carrying out the statutory command that protection of a derivative work not affect the scope of copyright protection in an underlying work. If we were to recognize Tomy’s derivative copyrights in its figures, those who, like Durham, have obtained from Disney the right to copy Disney’s own characters would, as a practical matter, have to make substantial changes in these characters in order to avoid infringing Tomy’s rights. In theory, of course, there would be no infringement of Tomy’s rights if Durham copied Disney’s characters and not Tomy’s figures, see 2 Nimmer § 8.01[C] at 8-13 to 8-14, but because proof of access plus substantial similarity can support a finding of infringement, Durham would at the very least be vulnerable to harassment. Yet any significant changes made by Durham to avoid liability would carry it away from the original Disney characters, in which Tomy concededly has no copyrights, and Disney’s right to copy (or to permit others to copy) its own creations would, in effect, be circumscribed. ' Thus it is clear that the originality requirement imposed by the Constitution and the Copyright Act has particular significance in the case of derivative works based on copyrighted preexisting works. Lacking even a modest degree of originality, Tomy’s Disney figures are not copyrightable. As to these toys we therefore need not consider the question of infringement by Durham. MISCELLANEOUS TOYS In connection with the five remaining copyright counterclaims, Durham does not challenge-and we can find nothing in the record that tends to cast doubt on-the validity of the copyrights asserted by Tomy. In the absence of any evidence to the contrary, the certificates of registration may properly be viewed as establishing Tomy’s right to sue for infringement. Our study of both the toys and the law, however, convinces us that Tomy has failed to prove that its copyrights were in fact infringed. Although the legal principles governing the infringement actions are easily stated, they are of limited utility in the decision of particular cases. As explained in Novelty Textile Mills, Inc. v. Joan Fabrics Corp., supra, 558 F.2d 1090, the question of infringement is generally resolved by the fact-finder’s prediction of the probable reaction of a hypothetical “ordinary observer.” In order to prove infringement a plaintiff must show ownership of a valid copyright and copying by the defendant.... Since direct evidence of copying is rarely, if ever, available, a plaintiff may prove copying by showing access and “substantial similarity” of the two works. * * * * * * “Substantial similarity” is to be determined by the “ordinary observer” test. Judge Learned Éand in defining this test stated there is substantial similarity where “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.” Pe ter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). More recently this court formulated the test as “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966). And, of course, by definition “[t]he copying need not be of every detail so long as the copy is substantially similar to the copyrighted work.” Comptone Co. v. Rayex Corp., 251 F.2d 487, 488 (2d Cir. 1958). . . . Id. at 1092-93 (footnote omitted). Durham does not deny access to Tomy’s toys and for purposes of this appeal we will assume that Tomy could, if given the opportunity, carry its burden on this element of its counterclaims. A comparison of the toys, however, indicates that Durham did not use this access to create toys substantially similar to those protected by Tomy’s copyrights. This is not to deny that there is a certain amount of similarity apparent in each pair of toys, as will be seen below. But a general impression of similarity is not sufficient to make out a case of infringement. The only similarity of significance in assessing claims of infringement is similarity of expression. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980). “It is an axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an idea and never to the idea itself.” Reyher v. Children’s Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976), citing Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954). Concededly, despite the importance of this dichotomy in delineating the scope of protection to be afforded a copyrighted work, it is a “difficult task ... to distill the nonprotected idea from protected expression.” Id. at 91. As Judge Hand acknowledged many years ago “no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc,” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d at 489, and often the determination is a matter of degree. The idea/expression distinction, although an imprecise tool, has not been abandoned because we have as yet discovered no better way to reconcile the two competing societal interests that provide the rationale for the granting of and the restrictions on copyright protection: “rewarding an individual’s ingenuity and effort while at the same time permitting the nation to benefit from further improvements or progress resulting from others’ use of the same subject matter.” Reyher v. Children’s Television Workshop, supra, 533 F.2d at 90. Thus, for example, in Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., 509 F.2d 64 (2d Cir. 1974), we held that the owner of a copyright on a particular gold turtle pin had no exclusive right to the idea embodied therein. As the district court stated in that case, “[t]he purpose of the copyright laws [is] to protect original designs from copying, not to convey to the proprietor any right to exclude others from the market place for jeweled turtle pins.” 378 F.Supp. 485, 490 (S.D.N.Y. 1974). See also Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 740 (9th Cir. 1971) (plaintiff may not prevent others from manufacturing and selling jeweled bees). It follows that where the protected work and the accused work express the same idea, the similarity that inevitably stems solely from the commonality of the subject matter is not proof of unlawful copying. Blazon, Inc. v. DeLuxe Game Corp., 268 F.Supp. 416, 423 (S.D.N.Y. 1965). There is another, equally important limitation on the scope of copyright protection that must be kept in mind in assessing substantial similarity. Just as copyright protection extends to expression but not ideas, copyright protection extends only to the artistic aspects, but not the mechanical or utilitarian features, of a protected work. Mazer v. Stein, supra, 347 U.S. at 218, 74 S.Ct. at 471. This distinction is embodied in the very definition of pictorial, graphic and sculptural works in the Copyright Act: Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. 17 U.S.C. § 101. Thus, in copyright actions, similarity of idea or function must be distinguished from similarity of artistic expression. Even as to protected aspects of a work, it should be emphasized that under the law only substantial similarity will support a determination of infringement. We have frequently held that where such substantial similarity is found, slight differences between a protected work and an accused work will not preclude a finding of infringement. Soptra Fabrics Corp. v. Stafford Knitting Mills, Inc., 490 F.2d 1092, 1093 (2d Cir. 1974); Cynthia Designs, Inc. v. Robert Zentall, Inc., 416 F.Supp. 510, 513 (S.D.N.Y. 1976) (“The question to be answered is not whether there are differences in detail between the copyrighted and accused items when subjected to minute scrutiny, but whether the accused item is so similar to plaintiff’s that an ordinary lay observer would conclude that- one was copied from the other.”) (footnote omitted); see also Concord Fabrics, Inc. v. Marcus Brothers Textile Corp., 409 F.2d 1315, 1316 (2d Cir. 1969) (minor differences emphasize extent of deliberate copying); accord, Peter Pan Fabrics, Inc. v. Dan River Mills, Inc., 295 F.Supp. 1366, 1369 (S.D.N.Y.), aff’d 415 F.2d 1007 (2d Cir. 1969). Identity or near identity between the accused work and the protected work is definitely not required for a determination of infringement. “The key to the ‘ordinary observer’ test is therefore the similarities rather than the differences. Only a slavish copy would have no differences and ‘[n]o one disputes that the copyright extends beyond a photographic reproduction of the design.’ ” Novelty Textile Mills, Inc. v. Joan Fabrics Corp., supra, 558 F.2d at 1093 n.4, quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d at 489. Yet we have also recognized that numerous differences tend to undercut substantial similarity. Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., supra, 509 F.2d at 65. As a matter of logic as well as law, the more numerous the differences between two works the less likely it is that they will create the same aesthetic impact so that one will appear to have been appropriated from the other. With these legal principles in mind, we turn to the five pairs of toys at issue. The district court’s dismissal of the five “miscellaneous toy” counts constitutes a determination, as a matter of law, that no reasonable juror could find that the ordinary observer would regard the five sets of toys involved as substantially similar. After examining the toys, we must agree. As many courts have noted in similar cases, words are no substitute for a visit to the toy store. Nevertheless we cannot discuss the question of infringement without attempting to describe the works involved. The Games Two of Tomy’s counterclaims involve simple games. The first, sold by Tomy under the name “Pass the Nuts,” is a stand-up, box-shaped toy about twelve inches in height. Four buttons located at the bottom of the box control four levers located behind the transparent plastic front of the toy. By pushing these buttons in the correct sequence, the player can move a plastic disc from the starting point to the goal. Tomy claims that Durham has infringed its Pass the Nuts copyright by manufacturing and distributing a similar game under the name “Mickey Mouse Peanut Putter.” Although the games are mechanically identical and structurally similar, they are distinguishable in many respects. Tomy’s Pass the Nuts game is housed in a yellow box and operated by red buttons. The levers that push the disc and the backdrop against which these levers are placed are designed to make it appear as if a bear, a rabbit, a monkey and a squirrel are attempting to throw an acorn from the ground up to the top of a tree. Durham’s Peanut Putter, housed in a green box and operated by yellow buttons, features Mickey Mouse, Minnie Mouse, Donald Duck and Pluto engaged in a game of golf, using a peanut rather than the more traditional golf ball, while the gallery (Huey, Dewey and Louie) cheers them on and Goofy officiates or possibly caddies. The second game at issue is Tomy’s battery-operated “Drive Yourself Crazy.” This game is housed in a red plastic box about eight inches long. A yellow steering wheel at the bottom controls a car which rests on a moving highway. As in life, the object of this game is to steer the car so as to keep it on the road, without hitting any obstructions, for as long as possible. With skillful steering the player can compile 100 points by avoiding a construction site, a mailbox and various other roadside hazards. The corresponding Durham game, which Tomy claims constitutes an infringement of its rights to Drive Yourself Crazy, is the “Mickey Mouse Star Ship.” Durham’s version is mechanically identical and structurally very similar to the Tomy game, but as with the disc games described above, the Durham artwork, based on Disney characters, is totally different. Rather than steer an automobile through a race, the player in Durham’s game is invited to help Mickey Mouse pilot his space ship from blast-off, through outer space, and to a safe landing. The player here must navigate his craft through such dangers as a meteor shower and an enemy attack and, presumably because of the difficulty of his mission, is given an opportunity, in mid-flight, to “make a wish upon a star.” Unlike the Tomy game, Durham’s game does not utilize a numerical scoring system. While conceding that the “decoration” of Durham’s games is entirely different from that of the respective Tomy games, Tomy maintains that the “sculpture” of each Tomy game is in itself an artistic creation protected by copyright, that Durham copied this sculpture, and that Durham cannot avoid liability by papering over its copied, infringing sculpture with non-infringing decoration. Tomy’s argument, however, overlooks the distinction drawn by the Copyright Act between art and utility. However counterintuitive such a classification may appear, for copyright purposes Tomy’s games must be considered useful articles: each has “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. The Copyright Act provides that the design of a useful article can be considered a sculptural work “only if, and only to the extent that, such design incorporates . . . sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Id. The features of Tomy’s games that have been copied by Durham relate solely to the mechanical, utilitarian aspects of the toys. The levers and buttons of the Pass the Nuts game and the steering wheel and moving path of the Drive Yourself Crazy game are the mechanisms that make the games work. The shapes of the toys and their dimensions and configurations also appear to have been dictated primarily by utilitarian considerations. Tomy has simply failed to specify any “sculptural features” or aesthetic elements of either game which could be identified separately from and exist independently of the utilitarian aspects of the article. See 2 Nimmer § 8.01[D]. In fact, Tomy’s games are “sculptures” only in the sense that every three-dimensional object has a shape. Neither game is a sculptural work as defined by the Copyright Act. Cf. Esquire, Inc. v. Ringer, 591 F.2d 796, 799-805 and n.9 (D.C.Cir. 1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979) (shape of useful article not protected under 1909 Copyright Act). In light of Tomy’s concession that the decorative aspects of its games have not been infringed, we must affirm Judge Motley’s dismissal of the two counterclaims involving these particular Tomy toys. Where the similarity demonstrated pertains solely to noncopyrightable material, summary judgment is appropriate. Hoehling v. Universal City Studios, Inc., supra, 618 F.2d at 977. The Dolls Tomy also asserts by way of counterclaim that three Durham wind-up dolls, known collectively as “Mini-Winders,” infringe certain copyrights held by Tomy. Tomy’s “Kid-A-Longs” is a plastic doll, about three inches long, apparently intended to represent a baby girl on her hands and knees. When wound, the doll crawls. Tomy claims that Durham’s “Baby Mini-Winder” infringes upon the Kid-A-Longs copyright. That the idea behind each toy is the same is evident from a viewing of the toys, and the inference that Durham conceived of the idea for its doll only after viewing Tomy’s toy is not an unreasonable one. Each toy represents a small, plastic, crawling baby dressed only in a diaper. Each has a head quite large in proportion to its body, and each has a rather broad face, with a wide-eyed “kewpie doll” appearance. But Durham’s expression of this possibly copied idea differs in every articulable respect from that of Tomy. Tomy’s female doll has a blue diaper, brown hair and a blue bow on her hair; Durham’s male doll wears a white diaper, has blonde hair arranged in bangs rather than curls, and sports no bow. In addition, his skin tone is lighter, his eyes are smaller, his eyelashes are fewer, his nose is more defined, his mouth is brighter and smaller, and his body appears longer. Moreover, his head appears somewhat larger, it is tilted at a different angle, and it is turned over his right rather than his left shoulder. Tomy manufactures another type of “Kid-A-Longs,” representing a baby, dressed only in a diaper, walking in a stroller rather than crawling. Durham has adopted this idea as well for its Mini-Winders series. As with the crawling dolls, both strolling dolls are mechanically identical and structurally similar. Both are made of plastic and stand between three and four inches tall. Yet in no articulable manner is Durham’s expression of this idea the same as that of Tomy. Tomy’s brown-eyed girl walks in a round stroller with a blue shelf attached to pink supports and wheels. Her pink diaper matches a pink bow in her hair. Her hair is light brown and is arranged in curls. Her arms are stretched out to her sides. Durham’s blue-eyed boy, dressed in a classic white diaper, walks in a yellow stroller whose shape and structure is totally different from that created by Tomy: it is yellow, with blue wheels, and the shelf and supporting legs are all of a piece. The boy’s dark brown hair is arranged in bangs rather than curls. His arms reach forward rather than to the sides. Unlike the Tomy girl, he lacks a navel. His eyes are smaller, his nose is sharper, his mouth is pinker, his eyelashes are fewer, and his head is bigger. Tomy’s final copyright counterclaim involves its “Rascal Robots” toy. This windup automaton has a silver-toned trunk, topped by a transparent blue dome and supported by orange feet. Its stationary orange arms jut straight out in front. The concept of legs has been entirely discarded. Durham’s accused “Star Mission Mini-Winder Robot” is significantly taller and thinner. His head is a clear plastic dome and his arms and legs are green. In comparison to the Tomy robot Durham’s robot has a more elongated head; a more elongated body; thinner, longer and straighter arms (which are moveable rather than stationary); and feet that are flatter and are attached to a pair of legs rather than directly to the trunk. The most distinctive feature of the three Tomy dolls is their ability to walk or crawl, but it is clear from our discussion of the art/utility distinction that Durham is free to copy not only the idea of walking or crawling dolls but the mechanism that makes such locomotion possible as well. One would probably notice next the small size of the Tomy dolls and the fact that they are made of plastic, but, of course, Tomy’s copyrights do not preclude others from making small, plastic wind-up dolls. In regard to the baby dolls, a certain degree of similarity is attributable to the “kewpie doll” appearance of both the Tomy and the Durham toys, but as stated in Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1023 (2d Cir. 1966), full faces, pert noses, bow lips, and large, widely spaced eyes are standard doll features. As we recently noted in discussing the alleged infringement of a copyrighted story for children, “ ‘[similarity of expression . . . which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity.’ ” Reyher v. Children’s Television Workshop, supra, 533 F.2d at 91, quoting 1 Nimmer § 143.11 (1975 edition). The same principle applies to the instant case. Similarity as to standard doll features is not as indicative of copying as would be similarity of features that render the protected toy distinctive. Keeping in mind that only the artistic rather than the mechanical aspects of Tomy’s dolls are copyrightable, that only Tomy’s expression of its ideas is protected, and that all dolls attempting to express the same idea will of necessity display at least some similarity, we must agree with the district court that as a matter of law, Durham’s accused dolls are not substantially similar to Tomy’s copyrighted dolls. In our view, “ ‘the total effect of the image conveyed to an ordinary observer by the accused dolls is quite distinct.’ ” Ideal Toy Corp. v. Fab—Lu Ltd., supra, 360 F.2d at 1022 (quoting the district court’s opinion). While it has been said that “[g]ood eyes and common sense may be Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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. FINN et al. v. CHILDS CO. No. 147, Docket 21521. United States Court of Appeals Second Circuit Argued Feb. 27, 1950. Decided April 5, 1950. Ben A. Matthews, of New York City (Harper & Matthews, Vincent P. Uihlein, and Cornelius D. Crowley, Jr., all of New York City, on the brief), for respondent-appellant. George Zolotar, Special Counsel, Securities and Exchange Commission, of New York City (Roger S. Foster, General Counsel, David Ferber, of Washington, D. C., and Lawrence M. Greene, Special Counsel, Securities and Exchange Commission, of Philadelphia, Pa., Richard V. Bandler, of New York City, and C. Eugene Webb, of Washington, D. C.), for Securities and Exchange Commission. Joseph Lorenz, of New York City (Lorenz, Finn & Lorenz, of New York City, on the brief), for trustee-appellee John F. X. Finn and appellee Lorenz, Finn & Lorenz. William P. Palmer, of New York City (Root, Ballantine, Harlan, Bushby & Palmer, L. Robert Driver, Jr., and Adam Yarmolinsky, all of New York City, on the brief), for appellees Everett Frank and William S. Hernon. Samuel Masia, of New York City (Archibald Palmer, of New York City, appellee pro se), for appellee Archibald Palmer. Harold P. Seligson, of New York City (Marshall, Bratter, Seligson & Klein, of New York City, on the brief), for appellees Protective Committee for Debentures and Marshall, Bratter, Seligson & Klein. Hoch Reid, of New York City (Ehrich, Royall, Wheeler & Holland and Ralph Royall, all of New York City, on the brief), for appellee Ehrich, Royall, Wheeler & Holland. Karelsen, Karelsen & Rubin, of New York City, for appellee Bernard Reis and Co. Abraham K. Weber, of New York City, appellee pro se. Holmes, Rogers & Carpenter, of New York City (Charles P. Rogers and Oliver C. Carpenter, both of New York City, of counsel), for appellees Thompson Preferred Stockholders’ Committee. Hetkin, Jervis & Hetkin, of New York City (Alfred H. Hetkin and Herman Jervis, both of New York City, of counsel), appel-lees pro se. Levin & Weintraub, of New York City (Benjamin Weintraub, of New York City, of counsel), for appellees New York Credit Men’s Association and pro se. Bergerman & Hourwich and Samuel A. Mehlman, both of New York City (Milton M. Bergerman, of New York City, of counsel), for appellees McMeekan Committee and Bergerman & Hourwich and Samuel A. Mehlman pro se. Karelsen, Karelsen & Rubin and Paul J. Kern, all of New York City (Morton G. Rosenberg, of New York City, of counsel), for appellees Durrell Preferred Stockholders Committee and Karelsen, Karelsen & Rubin and Paul J. Kern pro se. Weinstein & Levinson, of New York City (Frank Weinstein and Samuel J. Levin-son, both of New York City, of counsel), appellees pro se. Murphy, Block, Sullivan & Sawyer, of New York City (John Dwight Sullivan, of New York City, of counsel), for appellees Common Stockholders’ Committee and Murphy, Block, Sullivan & Sawyer pro se. Before CLARK, GOODRICH, and FRANK, Circuit Judges. . Annexed to this opinion as an appendix at its end is a table showing in detail the various amounts claimed, recommended, and allowed. CLARK, Circuit Judge. On petitions of various parties the district court granted final allowances for counsel fees and expenses of $964,439.36 in the proceedings for the reorganization of Childs Company under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Acting upon leave granted by this court, Childs Company, the. reorganized debtor, has appealed from awards amounting to $954,350 ; it asks no review of items allowed in reimbursement of expenses — $6,627.10—or of two other minor awards to the Indenture Trustee and its attorneys amounting to $4,462.26. It urges as to the items appealed from that the awards should not exceed $600,000; while the Securities and Exchange Commission, appearing by virtue of § 208 of the Act, 11 U.S.C.A. § 608, and taking the same position it took below, urges that these awards should not exceed $750,-000. The reorganization was commenced by voluntary petition on August 26, 1943, and completed by the consummation of a plan on March- 31, 1948 — a period of four years and seven months. The filing of the voluntary petition followed immediately upon the dismissal by the court of an involuntary petition which had been filed against it. See In re Childs Co., D.C.S.D.N.Y., 52 F. Supp. 89. The court appointed as trustee Mr. John F. X. Finn, well-known 'lawyer, author, and teacher; and he selected as his counsel his law firm of Lorenz, Finn & Lorenz upon the understanding that allowances would ' not be shared. The debtor had operated a chain of medium-priced restaurants, numbering 77 in 1943, and had made some unfortunate real estate acquisitions. The trustee was immediately active in securing modification of many burdensome leases of real estate and in the readjustment of mortgages and sales -of property. Several of these matters have been heard upon appeal. 415 Fifth Ave. Co. v. Finn, 2 Cir., 146 F.2d 592, certiorari denied Finn v. 415 Fifth Ave. Co., 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Meighan v. Finn, 2 Cir., 146 F.2d 594, affirmed Finn v. Meighan, 325 U.S. 300, 65 S.Ct. 1147, 89 L.Ed. 1624; Finn v. 415 Fifth Ave. Co., 2 Cir., 153 F.2d 501, certiorari denied 415 Fifth Ave. Co. v. Finn, 328 U.S. 838, 66 S.Ct. 1014, 90 L.Ed. 1614; In re Childs Co., 2 Cir., 163 F.2d 379. The trustee also took action against former officers of the company, obtaining a settlement of certain of his claims and pressing to a lengthy trial an action (not yet decided) involving other claims. So far as concerns conflicts among creditors and various classes of security holders, the reorganization seems to have been unusually free of controversy. Because of high wartime earnings and these activities of the trustee it soon became apparent that all creditors would be paid in full with a substantial equity for the stockholders. Developing a satisfactory plan of reorganization was somewhat more troublesome. The first plan approved by the district court, a capitalization entirely of common stock, divided 76.7% to holders of old preferred stock and 23.3% to holders of the old common stock, was defeated by vote of the common stockholders. A subsequent plan, involving issuance of both preferred and common stock, with voting power divided roughly 75% to the old preferred, and 25% to the old common, stockholders, was approved by both classes and eventually consummated. The value of the new company, as found by the district judge for purposes of both plans, was $9,980,000; this estimate was based on predicted future earnings, and the history of the company since reorganization suggests that it may have been unduly optimistic. The equity value shown on the trustee’s books on the day of consummation, reflecting revaluation of assets made by court-appointed appraisers, was $6,001,762. Even this figure was more liberal than the valuation made by traders on the stock exchanges. The claims for allowance of the twenty-four parties now before us totaled $1,417,-300. The allowances as made included $182,500 to the trustee and $535,000 to his counsel, $85,500 to eleven different representatives of creditors, $104,350 to seven different representatives of preferred stockholders, and $47,000 to four different representatives of common stockholders. In addition to this total of $954,350 and the other small allowances noted above which are not under review there were other expenses incurred in the reorganization of $180,662.76, a grand total of $1,145,102.12 or more than 26% of the net income of $4,329,472 received during the reorganization. This was in addition to the salaries of the debtor’s administrative and executive staff, retained in full by the trustee except for the one office of Chairman of the Board. The aggregate salaries of these officials ranged from $62,500 to $87,600 a year. In addition a special attorney handling labor problems was continued in the employ of the debtor at an annual retainer of $20,000. It may be noted that the amounts granted as allowances far exceed the trustee’s estimate of the reorganization expenses in the two plans presented — $350,000 in the first plan and $400,000 in the plan finally confirmed — beyond interim allowances to him and his counsel which had reached $231,000 by the time of the latter plan. The fixing of allowances has been called “the most thankless and delicate task in all of the problems of judicial reorganization,” Frank, Epithetical Jurisprudence and the Work of the Securities and Exchange Commission in the Administration of Chapter X of the Bankruptcy Act, 18 KY.U.L.Q. Rev. 317, 349-50, 1941, and “one of the most disagreeable and perplexing tasks which falls to the lot of a District Judge,” Silver v. Scullin Steel Co., 8 Cir., 98 F.2d 503, 506. Recognizing this, and recognizing, too, the peculiar advantage which the district judge has by virtue of his intimate knowledge of the whole history of the reorganization, appellate judges can come to the conclusion that the lower court has exceeded its discretion in granting allowances only with the greatest reluctance. That must be peculiarly so here where the reorganization was concededly successful. Nevertheless we cannot ignore the fact that the fees allowed amount to ten per cent of the estate upon the value originally set, and much more, even approaching twenty per cent, on the debtor’s claims of value at the close of the reorganization. Even in a small estate such a division of capital would seem large; in an estate of millions we can view it only as princely. We have often been admonished by the Supreme Court that in allowances of this sort we must avoid “vicarious generosity,” In re Gilbert, 276 U.S. 294, 48 S. Ct. 309, 72 L.Ed. 580, and that “the desire to reduce the cost of reorganization [was] one of the controlling reasons for the enactment” of the bankruptcy statutes. Callaghan v. Reconstruction Finance Corp., 297 U.S. 464, 469, 56 S.Ct. 519, 521, 80 L.Ed. 804; Realty Associates Securities Corp. v. O’Connor, 295 U.S. 295, 299, 55 S.Ct. 663, 79 L.Ed. 1446; Dickinson Industrial Site, Inc., v. Cowan, 309 U.S. 382, 388, 60 S.Ct. 595, 84 L.Ed. 819; Brown v. Gerdes, 321 U.S. 178, 181-182, 64 S.Ct. 487, 88 L.Ed. 659; In re New York Investors, 2 Cir., 79 F.2d 182, 185, certiorari denied Endelman v. Reconstruction Finance Corp., 296 U.S. 649, 56 S.Ct. 308, 80 L.Ed. 462. To permit allowances of the magnitude involved here seems to us to contravene a fundamental policy of the governing statute. We take note of the somewhat bitter dispute as to the drain upon the working capital of the newly reorganized company and its present vicissitudes only to suggest that a successful reorganization placed in jeopardy by high fees allowed can point only to a dreary round with the debtor emerging from bankruptcy only to re-enter it after the lawyers are paid. We have examined the applications for allowances of each of the parties involved here, with their detailed record of amount of time spent and the kind of work performed. We are not disposed to question the reasonableness of such fees by metropolitan practitioners for services of this kind when performed in the course of ordinary litigation. But in a reorganization proceeding, where the lawyers look for compensation to the debtor’s estate which may belong, in equity, largely to others than those who have requested their services, they should have in mind the fact that the total aggregate of fees must ¡bear some reasonable relation to the estate’s value. Under these circumstances they cannot always expect to be compensated at the same rate as in litigation of the usual kind. In re Standard Gas & Electric Co., 3 Cir., 106 F.2d 215, 216-217; In re Mt. Forest Fur Farms of America, 6 Cir., 157 F.2d 640, 647; London v. Snyder, 8 Cir., 163 F.2d 621. In the process of fixing allowances it has been generally found desirable, first to determine the total amount which the estate can afford to bear and which it should justly pay for the benefit rendered to it, and thereafter to allocate this amount among.the various claimants according to the value of the services which they performed. In this way the burden which fees place upon the estate can be kept within reasonable limits, and the spirit of the Bankruptcy Act observed in allowing only one fee .for particular services, regardless of the number of attorneys involved in performing that service. Such a course, so often recommended by courts and commentators, Campbell v. Green, 5 Cir., 112 F.2d 143; In re Irving-Austin Bldg. Corp., 7 Cir., 100 F.2d 574, 579; Carlisle, Allowances in Corporate Reorganizations, A5 Corp. Reorg. 67, 68-9, 1942; Note, The Cost of Corporate Reorganization Under "the Chandler Act, 52 Harv.L.Rev. 1349, 1352, 1939, would have been advantageous here in providing an effective control against compensation for services which only duplicate what others have done. Under § 77B, 11 U.S.C.A. § 207, which Chapter X has succeeded, we refused to " allow any compensation to stockholders whose services were unnecessary, since a committee had been formed earlier to represent their interests. In re Porto Rican American Tobacco Co., 2 Cir., 117 F.2d 599. True, a main purpose of Chapter X was to “democratize” corporate reorganization; and the fact that one committee is already at work will now not be held to prevent committees or individuals intervening subsequently from receiving compensation. 6 Collier on Bankruptcy ¶13.02, pp. 4508-9, 14th Ed.1947. But this does not mean that the estate must now pay twice — or more — for the same services. It means rather that where duplication of services by succeeding committees is not practically avoidable the amount which the services are worth should now be divided pro rata among the various parties who performed the duplicative services, rather than awarded to the first party in the field. Unfortunately this case shows much duplication. We have allowances to eleven different representatives of creditor interests, although it early became apparent that the creditors would be paid in full. We have allowances, to seven different representatives of preferred stockholder interests, and four different representatives of common stockholder interests. And yet it appears that the trustee and his counsel did a good job representing all these interests. In >our view this duplication deserved careful consideration in the fixing of allowances. Newman & Bisco v. Realty Associates Securities Corp., 2 Cir., 173 F.2d 609; Teton, Reorganization Revised, 48 Yale L.J. 573, 605, 1939. Heed should be paid, too, to the fact that many of the services for which compensation is claimed involved phases of the administration of the estate which the trustee was already handling more than satisfactorily. There should be much hesitation about compensating such wasteful labor. In re New York Investors, Inc., 2 Cir., 130 F.2d 90; Carlisle, supra, A5 Corp. Reorg. 67, at 78. It is true that a substantial reduction in the compensation for duplicating services will not greatly reduce the total cost to the estate in view of the large portion of the total going to the trustee and his counsel. Since these officers successfully carried the laboring oar in the proceedings, they should properly receive a major share of both the glory and the compensation. We gladly acknowledge the value of the devoted services of the trustee and his counsel in accomplishing the successful reorganization. We should not have expected less from men of such public spirit and high professional standing. Even so, we feel the generous bounds so indicated were overstepped in awards of $182,500 to the trustee and $535,000 to his counsel — a total of $717,500 to both. The compensation allowed was at a rate of roughly $40,000' a year for the trustee and $120,000 a year for his firm. However reasonable such charges on the part of lawyers of this standing might have been when made in ordinary litigation, that, as we have seen, c:mnot be the criterion in proceedings of this nature. The trustee spent 8,123 hours working on the reorganization. He had no substantial overhead expenses, since the debtor supplied him with an office and a secretary. Thus his compensation for his services is at the rate of roughly $22.50 per hour. The records of the trustee’s counsel indicate that 28,905 hours were devoted to the reorganization, so that the firm was compensated at a rate of roughly $18.50 per hour. Much of this highly-paid activity was for services of a sort which could well be performed by an accurate and sensible clerk; thus the application refers to such tasks as proofreading, supervision of printing and mailing, card indexing claims, supervising payments, to creditors and the like. Of more significance is the fact that 18,340 of these lioprs, or almost two-thirds of the total, were put in by associates, rather than by the one partner in the firm who was extensively active in this proceeding. Neither trustee nor counsel was required to give up all other activities or public service for exclusive attention to this estate. Considering how high a proportion of the total value of the estate the allowances to the trustee and his counsel involve, we are brought, not without reluctance, to the view that the amounts granted must be held excessive. We should have had more doubts as to our conclusions just stated, had they not been re-enforced by those of the Securities and Exchange Commission. In a reasoned statement discussing each petition the Commission presented grounds for limiting the various allowances to sums totaling $750,-000. These amounts individually and collectively seem to us quite generous, indeed, perhaps, more so than some of us would have granted as judges of first instance. They appear to support the statement of the Commission’s able spokesman that these are not intended as minima to be increased by the court, but that in fact the Commission has raised its standards to match the compensation awarded by other judges in other cases. The district judge, however, did not discuss these recommendations, or indeed the separate claims at all; but after stating the over-all picture of the successful reorganization merely expressed his conclusions, allowing an aggregate of 27% more than the Commission had recommended. We are thus left in the dark as to his reasons for rejecting the specific recommendations. Since the Commission’s recommendations represent the expert opinion of a disinterested agency skilled and experienced in reorganization affairs, they should be a valuable aid to a judge in performing a difficult task. 6 Collier on Bankruptcy ¶l3.02, p. 4498, 14th Ed.1947. Some courts have refused to give S. E. C. recommendations as to fees more weight than the suggestions of any other party, e. g., Cooke v. Bowersock, 8 Cir., 122 F.2d 977, 985; In re Detroit International Bridge Co., 6 Cir., 111 F.2d 235, 237-238. True, the Commission’s function in a reorganization proceeding is purely advisory; and it does not have the power to fix a maximum amount for fees which it has with regard to the reorganization of public utility holding companies under § 11 (f) of the Holding Company Act, 15 U.S. C.A. § 79k(f), and which the Interstate Commerce Commission has with regard to a railroad reorganization under § 77, sub. c, (2, 12), of the Bankruptcy Act, 11 U.S.C.A. § 205, sub., c, (2, 12). Nevertheless the figures presented by the S. E. C. are not “mere casual conjectures,” but are “recommendations based on closer study than a district judge could ordinarily give to such matters.” Frank, supra, 18 N.Y.U.L.Q. Rev. 317, 1941. We agree with District Judge Kirkpatrick’s apt statement “that the Commission is about the only wholly disinterested party in the proceeding and that, while it may not be entirely familiar with ‘the problems of making both ends meet in a law office’ referred to by counsel, its experience has made it thoroughly familiar with the general attitude of the Courts and the amounts of allowances made in scores of comparable proceedings.” In re Philadelphia & Reading Coal & Iron Co., D.C. E.D.Pa., 61 F.Supp. 120, 124. See also Note, 18 N.Y.U.L.Q.Rev. 399, 469-70, 1941, which suggests that the recommendations as to fees of the S. E. C. may be the only solution to the “very undesirable subjectivity with variations according to the particular judge under particular circumstances” which has made the fixing of fees seem often to ¡be “upon nothing more than an ipse dixit basis.” And see Securities and Exchange Commission, Tenth Annual Report 148, 1944, Fourteenth Annual Report 85-6, 1948. ' There are certain special cases which we 'must consider further. As to the others we have no other course- than to remand them for the further consideration of the district judge, particularly in the light of the recommendations made by the Commission. As applied at least to the circumstances disclosed in this case we think these recommendations should not be exceeded without definite findings and conclusions showing why this step is deemed necessary. These proceedings involving fees have already been pending almost two years; they should reach an end in order that the claimants may receive their just compensation and the debtor know definitely the obligations it faces. To the end of expediting this proceeding it may therefore be assumed—notwithstanding some personal doubts noted earlier—that the Commission’s recommendations, if adopted, may be considered affirmatively reasonable and properly allowable. The first of the special cases we must now discuss involves three claimants who have received awards covering, in part at least, services performed before initiation of this proceeding. These are the McMeekan Committee, representing debenture holders and its counsel, Bergerman & Hourwich and Samuel- A. Mehlman, awarded $6,000 and $25,000 respectively; Archibald 'Palmer, attorney for holders of Debentures and Stock, awarded $7,500; and Weinstein & Levinson, attorneys for holders of Debentures, awarded $1,000. The S. E. C. held that the latter had not proved their claim, and therefore recommended that nothing be awarded them. But it thought the activities of the McMeekan Committee of benefit to the reorganization and recommended an award of $4,000 to it and $20,-000 to its counsel. And as to Palmer, who had been instrumental in securing dismissal of the prior involuntary proceeding, it held that he had “wittingly or unwittingly” uncovered information helpful in the reorganization, and recommended an award of $6,000 to him. Here we are constrained to disagree with the Commission in the basis it accepts for these awards. Our doubts as to the legal basis for these awards, to the extent that they are based upon services rendered before the proceeding commenced, are made clearer by an analysis of them. The McMeekan Committee was formed in September, 1942, nine months before the filing of the involuntary petition and eleven months before the voluntary petition. The applications of the committee and its counsel show that much of their claims is based upon their services during this preliminary period. Those services consisted principally of urging debenture holders to refuse the voluntary exchange by which the debtor sought to avoid the necessity of reorganization. Such activity does not seem to us to have been of benefit to the estate, and it bears only the most tenuous relation to the plan of reorganization. So Palmer’s opposition to the involuntary petition, resulting in its dismissal, and the immediate filing of the voluntary petition, does not seem to us — upon the mere statement and without supporting findings —to show benefit to the estate. It did alter the course of the proceedings; but there is nothing to show it changed their ultimate end. The S. E. C. does suggest something additional, namely that Palmer’s examination of company officers and officials in his successful attempt to show collusion between petitioners and the debtor in this earlier petition did turn up evidence useful in establishing or in providing grounds of claim against these officials. As noted earlier, the trustee did make claim and prosecute an action covering these matters, though we have no findings or other information as to how much use he may have made of the material thus “unwittingly” turned up by Palmer. But if we accept, as we doubtless should, the view that his actions were thus beneficial, we still face the problem as to their compensability in this later proceeding. It is to be noted that in the original proceeding Judge Rifkind, though conceding the value of Palmer’s services for their intended purpose — the dismissal of that proceeding — held that they were not compensable under the Act. In re Childs Co., supra, D.C.S.D.N.Y., 52 F.Supp. 89. The anomaly of the grant here seems then apparent, particularly in the light of our decision in Palmer v. Kelby, 2 Cir., 138 F.2d 881, that services not com-pensable in the proceeding where rendered cannot be compensated for as contributing to a later proceeding. But we think the issue should be faced more directly; shortly stated, the very tenuous statutory basis for any allowance does not seem to us to justify awards for uncertain and somewhat problematical benefits thus conferred on the administration of an estate before it has begun. The difficulty is in seeing where much of any line can be drawn to reduce the potential contribution for prior activities during the always-occurring prior period of financial stress. Activities supporting the management will be beneficial as aimed at avoiding the disaster of bankruptcy; while activities opposing its excesses will be beneficial as hastening the curative and cleansing course of reorganization. The cases emphasize that when such allowances are made they must be for work which “directly contributes” to the reorganization; thus we have held that compensation is not allowable from the estate “for the work of the attorneys in conserving the debtor’s assets” as well as in proposing an arrangement differing from the reorganization finally effected. In re Ulen & Co., 2 Cir., 130 F.2d 303, 305. See also In re Realty Associates Securities Corp., 2 Cir., 156 F.2d 480; In re Mt. Forest Fur Farms of America, supra, 6 Cir., 157 F.2d 640, at 649-50; In re Barium Realty Co., 6 Cir., 154 F.2d 562, 565; In re Building Development Co., 7 Cir., 98 F.2d 844; Stark v. Woods Bros. Corp., 8. Cir., 109 F.2d 969; In re Mortgage Guarantee Co., D.C.Md., 40 F.Supp. 226, 239-240. To have this direct connection it would seem that the services, must not only be ultimately beneficial in some clearly observable way, but also have been directed toward the specific rehabilitation of the debtor which actually took place. Chance and unwitting action, or activities a year or so earlier to control the course of creditor pressure upon the debtor, would seem clearly outside the narrow limits of the precedents, even if these in turn do go somewhat beyond the literal statutory language. See In re Realty Associates Securities Corp., supra. This'would dispose of the pre-reorganization claims of the McMeekan Committee and their counsel as well as of Palmer. It also necessarily disposes of the claim of Weinstein & Levinson. We agree with the S. E. C. that this claim was not too thoroughly proven; but, in these aspects, it can rise no higher than Palmer’s .claim, since it concerned the dismissal of the involuntary proceedings. As to all this group of claims, however, fairness would appear to require a remand in order that the trial court may determine whether services were performed by these claimants after initiation of these proceedings for which compensation should be allowed. It does appear that the Committee and their counsel continued their activities throughout the proceeding, though some at least of their work appears to have been of an administrative nature, such as reviewing proposed real estate transactions or making studies and analyses of the debtor’s operations, and thus duplicative of work done by the trustee. There is more doubt on this record as to the continuing activities of the other two claimants; but since the approach below was on a different basis, we think they should have opportunity to make claim, if they can, on the basis which alone seems to us appropriate. The final question concerns the allowances to Everett Frank and William S. Hernon, large stockholders who acted together in the negotiation, development, and support of the plan actually effected in what the S. E. C. terms the capacity of “reorganization managers.” They were then active in the consummation of the plan, Frank becoming chairman of the Board and Hernon a director of the reorganized company. The activity of these men was directly beneficial to the estate, and they normally would be entitled to compensation under § 243 of the Act, 11 U.S.C.A. § 643, which specifically provides for the compensation of individual security holders for their participation in a reorganization. The S. E. C. contends, however, that these claimants should be denied compensation under the prohibition contained in the second sentence of § 249, 11 U.S.C.A. § 649, reading as follows: “No compensation or reimbursement shall be allowed to any committee or attorney, or other person acting in the proceedings in a representative or fiduciary capacity, who at any time after assuming to act in such capacity has purchased or sold such claims or stock, or by whom or for whose account such claims or stock have, without the prior consent or subsequent approval of the judge, been otherwise acquired or transferred.” The statute also requires any claimant for compensation to file with the court a statement under oath showing purchases or sales of stock, and Frank and Hernon had filed such statements showing extensive dealings in company stock. They were not formally a committee or concededly fiduciaries; but the S. E. C. contends that by the nature of their activities they were shown to be “acting in the proceedings in a representative or fiduciary capacity.” The district court ruled to the contrary and awarded them $20,000 for their services. There is authoritative dictum to the effect that “in all cases persons who seek compensation for services or reimbursement for expenses are held to fiduciary standards.” Mr. Justice Douglas in Brown v. Gerdes, supra, 321 U.S. 178, at page 182, 64 S.Ct. 487, 489, 88 L.Ed. 659. Since any compensation awarded from the estate is at the expense of all the other security holders, there is some ground for urging denial of such compensation to those who have traded for their own gain, and thus have served interests other than those of all their class or of the whole estate. See Dickinson Industrial Site, Inc. v. Cowan, supra, 309 U.S. 382, at page 389, 60 S.Ct. 595, 84 L.Ed. 819; Young v. Higbee Co., 324 U.S. 204, 212-213, 65 S.Ct. 594, 89 L.Ed. 890; Berner v. Equitable Office Building Corp., 2 Cir., 175 F.2d 218, 220; Note, 18 N.Y.U.L.Q.Rev. 399, 475, 1941. But see 6 Collier on Bankruptcy ¶13.18, pp. 4593-4, 14th Ed. 1947, We do not go so far here, because we believe these claimants have acted in a “representative” capacity, and thus have brought themselves within the literal wording of the statute. The record is clear that they created a large bloc of preferred stockholders amenable to their directives, maintained its unity by frequent communication, effectively asserted its strength during the formulation and confirmation of a plan of reorganization, and exerted its power to assure the selection of a new management satisfactory to themselves. Having persuaded many of their friends to buy the preferred stock, Frank and Hernon indulged in activity which is only consistent with the determination that they were “representing” these friends in the reorganization. They let it be known that they were speaking for one-third to one-half of the preferred stock — though their own individual holdings were not large — and they thus asserted an effective veto over the course of the proceedings. Frank procured regularly from the trustee up to fifty copies of monthly reports which were sent to his group of “friends.” He and Hernon made every effort short of proxies to get their “friends” to vote for a plan which they favored. They used 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_circuit	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. ETABLISSMENTS RIGAUD, Inc., Appellant, v. Jane M. HOEY, as Executrix of the Estate of James J. Hoey, Deceased, Appellee. No. 306. Circuit Court of Appeals, Second Circuit. June 28, 1943. Walter L. Post, of New York City (Edward Holloway, of New York City, and Robert M. Post, of White Plains, of counsel), for appellant. William L. Lynch, and Mathias F. Correa, U. S. Atty., both of New York City, for appellee. Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges. PER CURIAM. Affirmed on opinion below, SO F.Supp. S98. 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_usc2	29	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAMIMENT, INC., Respondent. No. 19271. United States Court of Appeals, Third Circuit. Argued June 24, 1971. Decided Nov. 9, 1971. Biggs, Circuit Judge, dissented and filed opinion. John D. Burgoyne, Asst. Counsel, N. L. R. B., Washington, D. C. (Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, David E. Rosenbaum, Atty., N. L. R. B., on the brief), for petitioner. Irving D. Lipkowitz, Lipkowitz, Plaut, Salberg & Harris, New York City (Melvin Salberg, David Kramer, New York City, on the brief), for respondent. Before BIGGS and ROSENN, Circuit Judges, and KRAFT, District Judge. OPINION OF THE COURT ROSENN, Circuit Judge. The National Labor Relations Board has applied to this court pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) for enforcement of its order issued against respondent Tamiment, Inc., for violating Section 8(a) (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (1)) by refusing to allow access to its premises for union representatives attempting to organize its workers. The opinion of the Board is reported at 180 N.L.R.B. No. 171. The sole issue raised is whether the union has made an adequate showing that there are no reasonable alternative means for generating face to face contact with workers without having access to the employer’s property. In view of the nature of the issue, the operations of Tamiment’s resort should be described. Tamiment, Inc., is an adult summer camp operated from approximately the beginning of May to the end of September each year in the Pocono Mountains of Eastern Pennsylvania. It is about four and a half miles from Bushkill, Pennsylvania, and thirteen miles from the larger town of East Stroudsburg, Pennsylvania. The resort is a largely self-contained entity. Its 2200 acres, 475 of which are developed, are totally enclosed by a barbed wire fence. The main entrance to the hotel is a private road, approximately “four city blocks long,” leading from the highway to the entry gate. A guardhouse stands at the gate and controls all entry to the property. There is an employee parking lot just outside the entrance gate with a capacity for 200 cars. Although no general solicitation is permitted on the property, members of the public are permitted to enter to look around on one hour passes. Once inside the gate a guest can move freely around the property. The resort has almost all the living and recreational facilities that its guests and the 85% of the staff who live on the premises need. Besides a dining room, there are lakes, swimming pools, golf, nightclubs and other activities. There is also a United States Post Office on the premises that will send and receive mail for guests and staff. The staff live in cottages spread throughout the grounds. They are given all their meals free which they take in their commissary, or in the main dining room before the guests eat. They have available a laundromat, and they can use all the recreational facilities of the hotel except in peak vacation periods and on weekends. There are no private telephones in the staff cottages, although there are public telephones at various locations. Those members of the staff who wish can bring food in to cook on hotplates in their rooms. Staff who live off the premises are given the meals served during their work hours without charge. On their free time, employees frequent the Log Cabin, a bar and grill about one mile down the road from Tamiment, and other bars and restaurants in the area. They also go to the racetrack nearby and to other resorts in the Poconos. The nearest cinema is in East Stroudsburg, twelve to fourteen miles away. When the employees are on duty, most of them, with the exception of administrative and golf personnel, wear uniforms, but the management encourages them to wear regular clothes during their off-duty hours. The staff is transitory. During the season the number of employees varies from about 300 in the slow spring and fall periods to a peak of about 435 during the summer. They are recruited from Florida, New York, New Jersey, and Pennsylvania. Job advertisements are sent to state and federal employment agencies and to many colleges. A large number of the work force are students employed during their summer vacations. Many workers stay only a few weeks, and most do not last the entire five month season. Although the management writes each winter to the past season’s employees to ascertain if they wish to return to Tamiment for the upcoming season, only about 25% to 30% of the staff do so. The employees work a variety of shifts. Some departments of the resort, such as reservations and maintenance, are on a twenty-four hour basis; others operate for eight to sixteen hours a day. Most people are on a six day week, although some waiters and waitresses are expected to work seven days weekly. An eight hour day is standard, but the dining room and beverage people have periods on and off duty throughout the day coinciding with meal hours and the operation of the nightclub. The housekeeping staff is also employed on a staggered work day basis. During the spring of 1969, Local 558 of the Hotel and Restaurant Employees Union began an organizing campaign throughout resorts in the Pocono Mountains. Harvey Morse, the international trustee in charge of the local (Local 558 is in trusteeship) and its local organizer, Serge Schuster, had responsibility for winning representation of the employees at Tamiment. On or about April 1, 1969, Morse and Schuster went, to Tamiment and talked with Victor H. Gerard, the Managing Director of the resort, and an associate, Alex Blaker. Morse suggested that because of a fire which had damaged Unity House, a nearby hotel owned by the International Ladies Garment Workers Union, it would be helpful for Tamiment’s business if it were unionized. Gerard rejected the offer. On May 12, the day before the season began in 1969, Schuster appeared at the gate to Tamiment, but was denied admission by the guard unless he had a permit from the management. He departed without meeting anyone and returned the next day, stationing himself near the employees’ parking lot. He talked with four members of the staff. They signed authorization cards and at their request were given additional cards for other employees to sign. Schuster arranged to meet with them in a week. During the same visit Schuster also put union literature on various cars in the parking lot without interference by the guards. Schuster again returned a day or two later and talked with Allen Menell, Administrative Manager of the hotel, who told him that if he wanted access to the employees he would have to have the permission of the management of Tamiment in New York. On May 15, the union sent such a letter, but it was never answered. On the following day, Schus-ter attempted to hand out leaflets just outside the gate, but Menell asked him to leave because traffic was heavy that Friday afternoon and he was causing congestion. A few days later Schuster again returned. He did not find the four employees to whom he had previously talked, but he attempted to sign up three other workers just outside the guardhouse area. The guards interfered and refused to allow solicitation there. On May 22, Schuster returned to Tamiment but was told by the guards that he could not come up to the guardhouse nor could he use the private road from the highway. Schuster noted that now there were “no trespassing” signs posted along the road. On May 28, Morse and Schuster met with Gerard, the Managing Director, to ask for permission to enter the grounds. Their request was rejected. Thereafter, Schuster began going to the Log Cabin, a nearby bar and grill, and to another tavern in Bushkill, for the purpose of meeting employees. He continued to visit these places approximately twice a week until Tamiment closed at the end of September. Mr. Schuster’s final attempt to enter the property was a visit in mid-June as a guest during a meeting of two Philadelphia Cap and Millinery Union locals. Shortly after Schuster’s arrival, Gerard and Menell received reports that he was talking to employees who were on duty and passing out literature. They sought him out and asked him to act like a guest or leave the premises. Schuster claims that he was then followed closely by security personnel and began to feel extremely uncomfortable even though he was not talking to employees. About two hours after the conversation, he decided to leave and checked out. In sum, Schuster could claim that after a summer’s effort he had spoken to about 25 employees and handed out about 150 authorization cards. He had secured only 12 signed cards. On this record, the trial examiner found that management had violated Section 8(a) (1) of the National Labor Relations Act by excluding non-employee organizers from the premises when there were no effective off-premises channels of communication available to the union. He noted that the resort is a completely self-contained community, whose employees rarely need to leave. The staggered shifts and the lack of telephones make communication difficult. In his opinion, the union had made reasonable efforts to reach employees through the normal channels of communication, but such efforts were “doomed to failure.” The only effective means was direct access to the premises. The Labor Board affirmed the trial examiner’s findings. If Tamiment’s employees had undertaken this drive, there would be no question as to their right to campaign on its grounds. We are concerned with a different situation: the right of non-employee representatives of a union to have access to an employer’s private property for the purpose of organizing his workers. The Supreme Court laid down the fundamental test for determining when non-employee organizers should be allowed to enter company property in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). It held that “when the inaccessibility of employees makes ineffective the reasonable attempts by non-employees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit communication of information on the right to organize.” (Emphasis ours.) Has the union in the case sub judice made sufficient reasonable attempts to satisfy that test? In cases involving self-contained resorts where the employees live on the premises, union organizers face a more difficult task in communication with the workers than they do in the ordinary plant situation, where employees leave daily and return to their homes. This problem is particularly acute in organizing where many believe that there is no substitute for some face to face contact between the union organizer and workers during the campaign. National Steel Corp., etc. v. NLRB, 415 F.2d 1231 (6th Cir.1969). However, these needs and problems do not require that the employer forego his right to limit access to his property in a non-discriminatory fashion, absent a showing that the union could not take alternative measures to generate face to face contact. Respondent has pointed out that the Labor Board has recently suggested that union organizers should endeavor to use newspapers, television and radio before being allowed to enter company property (Falk Corp., 192 N.L.R.B. No. 100, p. 11, 77 L.R.R.M. 1916, 1920-1 (1971); NLRB v. Kutscher’s Hotel, 427 F.2d 200, 201 (2nd Cir.1970)). We doubt that television and radio would have been an effective and reasonable alternative means of communication in this situation. In a hotel resort with employees working staggered shifts over a seven day work week, it is unlikely that a significant proportion of the work force would be able to listen to broadcast appeals at any one time. NLRB v. S & H Grossinger’s, Inc., 372 F.2d 26, 29 (2nd Cir.1967). On the other hand, as we discuss later, newspapers might have served a limited useful purpose. The union must make reasonable efforts to communicate with workers through alternative means and arrangements when seeking face to face contact. The first and most obvious procedure for the union to follow would be to attempt diligently to reach workers when they are off company property. In this case Schuster tried to talk to workers outside the gate leading to Tamiment, and when told that such activities were not permitted because the guardhouse and employees’ parking lot were on private property, he repaired to nearby taverns, hoping to meet employees there. We cannot agree with the Labor Board that the failure of Schuster’s efforts to bear fruit is sufficient to amount to an adequate basis for a finding that the union lacked reasonable channels of communication off-premises with Tamiment’s employees. While it may be difficult to describe generally what would amount to an effective effort to communicate with employees and generate face to face contact, there are certain obvious and relatively inexpensive additional steps that Schuster and Morse should have attempted to undertake. They made no effort to obtain a list of all the employees of Tamiment so that the union could send mail directly to them. Although mail is no substitute for face to face contact (NLRB v. United Aircraft Corp., 324 F.2d 128, 130 (2nd Cir. 1963), cert. denied 376 U.S. 951, 84 S.Ct. 969, 11 L.Ed.2d 971 (1964)) the Board has found letter writing a useful first step in communicating with employees. (Falk Corp., supra). While management need not provide such a list in advance of a Labor Board sponsored election (Excelsior Underwear, Inc., 156 N.L.R.B. 1236 (1966)), it is free to do so if it wishes, and it may be particularly willing to yield to this request to retain the atmosphere of quiet and serenity at its resort hotel. Counsel for management at oral argument noted that Tamiment would have given the union such a list, that a United States post office facility was located on the property, and that the employer would not have interfered with any mail addressed to its employees by the union. This concession distinguished in part this case from S. & H. Grossinger’s, Inc., supra, where the Second Circuit enforced the Board’s order to admit union organizers after a request for a list had been turned down. The union did not request the right to post notices of any sort at various staff facilities on company property or on the employees’ parking lot. While such notices may be of only marginal utility in stimulating interest in the union, the failure to make such a request does reflect on the union’s lack of initiative in devising techniques to meet with Tamiment’s employees. Finally, the union failed to arrange for any meetings for employees. It neither extended an invitation for such a meeting through using a mailing list or through the employees it had already signed up, nor made announcements in the local newspaper. It is reasonable to expect that any employees interested in organizing would be willing to make some effort to attend a meeting sponsored by the union during their leisure time. (E. g., Falk Corp., supra, at 1920). Although the staggered shifts and seven day work weeks of some of the people at Tamiment might have limited the number of those in attendance, the union should have attempted to set up such meetings. It is only after the union has made a showing that it used reasonable efforts to utilize “other available channels of communication” that the Board should proceed to consider the total effectiveness of these efforts and the countervailing inconvenience and injury to the employer having union organizers on his premises. Were the union to have made the necessary showing in this case, it seems clear that such additional questions would have been proper for the Board’s consideration. Neither of the previous cases decided by the Second Circuit dealing with entry by non-employee organizers to rural resorts is dispositive in this case. In S. & H. Grossinger’s, supra, the Second Circuit upheld the Board’s order for entry because the union engaged in considerably greater efforts at organizing than at Tamiment and was met by outright management hostility. (S. & H. Grossinger’s, supra, 372 F.2d at 29). In essence that decision was based on considerations of effectiveness we do not reach because of the union’s failure to show a lack of any reasonable effort to utilize alternative channels of communication. Conversely, in Kutscher’s Hotel, supra, where the union had direct face to face contact with the employees each day because ninety-five percent of them had to cross a public road to get from their living quarters to the hotel, the court found that the alternative means were adequate. The record in this case shows nothing more than minimal efforts to communicate with respondent’s employees. We are not satisfied that there is “substantial evidence on the record as a whole” to warrant an invasion of private property by non-employees for union organizational purposes. The petition to enforce the order of the Board dated February 4, 1970 will be denied. BIGGS, Circuit Judge . 29 U.S.C. § 158(a) (1) provides: “(a) It shall be an unfair labor practice for an employer— 1. to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; ” . This case is one of a growing number of cases involving unionization of self-contained resorts (NLRB v. Kutscher’s Hotel, 427 F.2d 200 (2nd Cir. 1970) ; NLRB v. S. & H. Grossinger’s, Inc., 372 F.2d 26 (2nd Cir. 1967) ; New Pines, Inc., 191 N.L.R.B. No. 144 (1971) ; H & G Operating Corp., 191 N.L.R.B. No. 110 (1971), in which the Labor Board has attempted to accommodate the employee’s rights to organize under Section 7 of the National Labor Relations Act (29 U.S. O. § 157) with the employer’s right to control his property. . We have examined the entire record pursuant to the mandate in Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) where the Court taught that: “Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.” . We do not hold that an employer must provide a list of its employees to union organizers. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_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 the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Cornelius LEWIS, Petitioner-Appellee, v. Michael LANE and James Thieret, Illinois Department of Corrections, Respondents-Appellants. Cornelius LEWIS, Petitioner-Appellant, v. Michael LANE, Director of the Illinois Department of Corrections, and James Thieret, Warden of Menard Correctional Center, Respondents-Appellees. Nos. 87-1103, 87-1171. United States Court of Appeals, Seventh Circuit. Argued May 28, 1987. Decided Nov. 4, 1987. Rehearing Denied Dec. 9, 1987. J. Steven Beckett, Reno O’Byrne & Kep-ley, Champaign, Ill., for petitioner-appellee. Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants. Before CUMMINGS, CUDAHY, and COFFEY, Circuit Judges. CUMMINGS, Circuit Judge. Petitioner, Cornelius Lewis, his sister, Bernice Lewis, and Willie Sangster were indicted in Macon County, Illinois, on February 21, 1979, and charged with the offenses of murder, armed robbery, and aggravated kidnapping in connection with the robbery of the Citizens National Bank in Decatur, Illinois, on December 14, 1978, during which a bank security guard was shot and killed. Sangster’s case was continued and petitioner and his sister Bernice were tried together. A jury found both guilty of all three charges. Petitioner was subsequently sentenced to death for murder. Bernice was sentenced to concurrent prison terms of forty years for murder, thirty years for armed robbery, and thirty years for aggravated kidnapping. The Illinois Supreme Court on direct appeal affirmed petitioner’s conviction and death sentence. People v. Lewis, 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346 (1981). The Supreme Court of the United States subsequently denied certiorari. Lewis v. Illinois, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308. Petitioner then sought post-conviction relief in the Illinois courts. See Ill.Rev.Stat. ch. 38, 11122-1 et seq. An Illinois circuit court denied post-conviction relief, and the Illinois Supreme Court again on direct appeal affirmed the lower court’s order. People v. Lewis, 105 Ill.2d 226, 85 Ill.Dec. 302, 473 N.E.2d 901 (1984). Certiorari was again denied. Lewis v. Illinois, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153. On November 13, 1985, the Illinois Supreme Court granted petitioner a stay of execution pending his filing a petition for a writ of habeas corpus. The stay was subsequently extended to cover the outcome of the federal habeas corpus proceedings which were commenced pursuant to 28 U.S. C. § 2254 on March 31, 1986. The habeas petition challenged both the conviction and the death sentence. Petitioner claimed that his conviction had been obtained in violation of his right under the Sixth Amendment to effective assistance of counsel. He further claimed that his Sixth Amendment right to effective assistance of counsel had also been denied during the sentencing phase of his case. Finally, he claimed that the Illinois Death Penalty Act, Ill.Rev.Stat. ch. 38, ¶ 9-1, was unconstitutional under the Eighth and Fourteenth Amendments. The district court held that petitioner had failed to demonstrate ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, during the guilt phase of his trial. See United States ex rel. Lewis v. Lane, 656 F.Supp. 181 (C.D.Ill.1987). However, the court held that he had been denied his Sixth Amendment right to effective assist-anee of counsel during the sentencing phase of his prosecution and accordingly issued a writ of habeas corpus vacating the death sentence and ordering resentencing. In light of its holding with regard to petitioner’s sentencing, it did not reach the constitutionality of the Illinois Death Penalty Act. Respondent appeals the court’s grant of the writ of habeas corpus ordering resentencing. Petitioner cross-appeals the district court’s denial of relief as to his conviction. We affirm. I. 28 U.S.C. § 2254(d) provides that the factual findings of a state court are presumed to be correct in a federal habeas corpus proceeding. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722. Like the district court, we adopt the Illinois Supreme Court’s following statement of facts in People v. Lewis, 88 Ill.2d 129, 136-41, 58 Ill.Dec. 895, 898-90, 430 N.E.2d 1346, 1349-51 (1981): “The testimony of the principal witnesses was as follows. Jodi Myers testified that, at 6:45 a.m. on the morning of the crime, she noticed two or possibly three persons in a maroon Monte Carlo automobile in the parking lot of the day-care center where she worked. As she walked near the Monte Carlo, a black man seated in the driver’s seat (whom she later identified from a line-up as Maurice Farris) lowered his sun visor. “Mary Comerford testified that, after delivering her child to the same day-care center, she returned to her car, noticing two black persons in a maroon Monte Carlo parked next to her white Mercury automobile. When she entered her car, a black man wearing a ski mask appeared in her back seat and forced her to drive away, eventually taping her eyes and hands and placing her in the trunk of the Mercury. “Kaye Pinkley, a teller at the Citizens National Bank, testified that decedent Bivens normally drove a van with five tellers from the bank’s parking garage to an auto-banking facility. Shortly before 8 a.m. on December 14, as decedent was about to start the van in which the tellers were seated, a tall black man pulled the right front door open, leaned his elbows on the witness’s legs, ordered the tellers to remain silent, and shot decedent, as the latter apparently reached for his gun. Then the gunman and another robber took three of the tellers’ five briefcases containing money for the day and banking paraphernalia, ran to a light-colored Mercury and drove away. Teller Pinkley and two other tellers later identified items recovered from the Macon County landfill as items which had been in their briefcases that morning. “Mr. and Mrs. Joseph Dennis from rural Macon County stated that, while sitting in their car near the Citizens National Bank, they saw two blacks park Mrs. Comerford’s Mercury, enter the bank’s parking garage, later return to the Mercury, with three black briefcases, and drive off. Gail Thompson, a florist, saw a black man or person dressed as a man, carrying a black briefcase in the vicinity of the parking lot near the bus station, where Norman Go-enne, an office worker, saw the driver in a maroon Monte Carlo, waiting with the engine running at around 7:45 a.m. “Maurice Farris testified that he and Willie Sangster (who according to the prosecution’s theory was the mastermind of the robbery) surveyed the Citizens National Bank and the route to the home of Margaret Morgan, where defendant apparently was staying. On two mornings, Farris observed the tellers’ routine. Sangster introduced defendant and his sister (using the names ‘Denise’ and ‘Mingo’) to Farris, who at trial estimated the sister’s height as 5 feet 11 inches, defendant’s as over 6 feet and his own as 5 feet 8 inches. The Lewis-es and he discussed plans for the robbery of the bank. Farris was to drive the car, the Lewises were to do the actual robbing, and Sangster was to get $10,000 ‘off the top’ the day after the robbery, apparently for his role in planning. On the morning of December 13, when they had intended to carry out the plan, the Lewises and Farris were unable to steal a car for use in the robbery, but they did observe the tellers’ routine and drove along the route to Mrs. Morgan’s. The next morning defendant and his sister, with Farris driving, went to the daycare center in the Monte Carlo looking for a car to steal. Maurice lowered his sun visor to avoid being identified. Defendant left the car and concealed himself in the back seat of Mrs. Comerford’s Mercury. When she entered the car he forced her to drive away and eventually took control of her car, forcing her to get into the trunk. Defendant’s sister then left Fanis in the Monte Carlo, which had accompanied the Mercury, and sat on the passenger side of the front seat of the Mercury. Farris drove to a parking lot near the bus station, got some coffee at about 7:40, and waited with the motor running until defendant and his sister rejoined him, carrying one and two briefcases respectively. The Lewises concealed themselves on the floor of the maroon Monte Carlo. On the drive to Mrs. Morgan’s, a siren prompted comments by the sister, and defendant stated, ‘The guard went for his gun. I had to burn him.’ Except for the possibility of a perjury prosecution, Farris received total immunity in return for his testimony. “Mrs. Morgan testified that the Lewises had stayed with her beginning on December 12,1978. On the morning of December 14, at about 8:05 or 8:10 a.m., she observed the defendants with three black briefcases. She asked Bernice Lewis whether Bernice knew that the bank had been robbed, to which Bernice, with defendant present, replied, ‘Did he die?’ Later that morning Mrs. Morgan saw both Lewises counting a large quantity of money on her coffee table, with black briefcases and ‘blank money orders from the bank and money wrappers’ present. Defendant gave Mrs. Morgan a paper sack to take to Willie Sangster at Jelk’s Barbershop, where he worked. Later that day, Bernice Lewis and Mrs. Morgan went to a deteriorated section of Decatur to dispose of the black briefcases and a garbage bag containing two handguns, money wrappers, and other miscellaneous items. Subsequently Mrs. Morgan and two neighbors moved these things from the garbage cans, where Bernice Lewis and she had put them, to a ‘dumpster.’ Mrs. Morgan, Shirley Brummet (a neighbor), and the Lewises drove to the Davenport, Iowa, bus station, where defendant and his sister caught the bus to Des Moines. Mrs. Morgan eventually turned over to the FBI some money which she said included that given her by defendant. Mrs. Morgan testified that she discovered a .357-Magnum handgun, which a ballistics expert indicated could have fired the bullet which killed decedent, under a mattress in the room in which the Lewises had been staying. She stated she observed the gun during a January 25 FBI consent search of the room when the agents lifted the foot of the mattress on the bed. According to her testimony the gun was located near the head of the bed and was not seen by the agents. She did not then mention the gun to them but later that day took it to a friend’s home from which the agents later recovered it at her direction. The agents both testified that only the lower corners of the mattress were lifted and they did not observe the gun. On January 31 Mrs. Morgan did give to FBI agents five live rounds of .357-cali-ber ammunition which she had earlier removed from the gun. “Barbara Rigney (one of Mrs. Morgan’s children) and Florida Eubanks and Shirley Brummet (two neighbors) testified that Bernice and Cornelius Lewis had been staying at Mrs. Morgan’s in mid-December, 1978. Wyonia Adams, another neighbor, testified that she and Shirley Brummet had moved garbage bags containing guns and miscellaneous items from a trash can to a ‘dumpster.’ Shirley Brummet testified that, on December 14, she had traveled with the Lewises and Mrs. Morgan, to the Davenport, Iowa, bus station. Officer McQuaid, of the Decatur police, testified that he observed a black lady carrying a sack into Jelk’s Barbershop on the morning of December 14, 1978. “Defendant’s brother-in-law, Dwight David, testified that in late December 1978 defendant had asked him to keep a box which contained money. After he heard that defendant had been arrested, David took the money from the box, put it in a bag, and asked a friend, Mrs. Bradford, to hold it for him. He later retrieved it, and gave it, still in the bag, to the FBI, together with the box from which he had taken it. FBI Agent Ryan testified that new $20 bills with serial numbers G21536201A through G21536247A were included in the money turned over by David. Daniel Kin-sella, an official of the Federal Reserve Bank, testified that numbers written on the back of a form (Exhibit 80) indicated that $20 notes with serial numbers G21536001A through G21540000A were in a shipment of currency which had been sent to the Citizens National Bank in Decatur. “Lee Jarombeck, an employee of a Minnesota car dealer, testified that defendant had rented from him the maroon Monte Carlo which had been observed in the daycare lot and eventually recovered from Far-ris’ garage. “Defendant offered no testimony, adopting Bernice Lewis’ case, which primarily emphasized Mrs. Comerford’s lineup identification of Farris as her kidnapper, and teller King’s positive statements to Decatur police officers that the robbers were both male.” II. The focus of both the principal appeal and the cross-appeal is whether petitioner was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments. On the principal appeal the State challenges the district court’s determination that the performance of petitioner’s attorney during the sentencing phase was constitutionally deficient. On the cross-appeal petitioner challenges the court’s determination that he did not receive ineffective representation within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, during the guilt phase of the proceedings. “The essence of an ineffective assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.” Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305; see Strickland v. Washington, 466 U.S. at 686, 104 S.Ct. at 2063; United States v. Cronic, 466 U.S. 648, 655-57, 104 S.Ct. 2039, 2044-46, 80 L.Ed.2d 657. In discussing the content of the Sixth Amendment right to effective assistance of counsel, the Supreme Court has emphasized the importance of the adversarial process and the critical role of counsel in ensuring its proper functioning. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. In United States v. Cronic, 466 U.S. at 656-57, 104 S.Ct. at 2045-46, the Court declared: The right to effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. In order to establish an ineffective assistance claim, a defendant must show that his counsel’s performance fell below basic standards of competence and that the resulting errors so prejudiced his defense as to deprive him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The defendant, not the State, bears the burden of proving both incompetence and prejudice. Id. There is a strong presumption that counsel’s performance falls within “the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. To overcome this presumption, the defendant must demonstrate that his counsel’s representation fell below an objective standard of reasonableness as measured by reference to prevailing professional norms. Id. at 688, 104 S.Ct. at 2064. The reasonableness of counsel’s performance should be evaluated not with hindsight but from counsel’s perspective at the time of the alleged error and in light of all the circumstances. Id. at 689, 104 S.Ct. at 2065. That counsel’s representation was professionally unreasonable, however, is not enough to constitute ineffective assistance under the Sixth Amendment. The defendant must also show that any deficiencies in counsel’s performance actually prejudiced his or her defense. The appropriate test for prejudice is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the result. Id. As the Supreme Court indicated in Strickland, the prejudice inquiry is substantively the same regardless of whether the defendant is challenging his conviction or his sentence: When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence— would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Id. at 695, 104 S.Ct. at 2068. In determining the existence of prejudice, the court must consider “the totality of the evidence before the judge or jury.” Id. In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2587, 91 L.Ed.2d 305, the Supreme Court described the Strickland standard for ineffective representation as “highly demanding,” and stressed that “[o]nly those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ.” Fully recognizing the rigorous nature of the Strickland test, we also keep in mind the wise counsel of Judge Wyzan-ski: “While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.” United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.1975), certiorari denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (quoted in Cronic, 466 U.S. at 657, 104 S.Ct. at 2046). III. The Sixth Amendment’s requirement of effective assistance of counsel applies to a capital sentencing proceeding in the same manner in which it applies to the conviction phase of a criminal proceeding. As the Supreme Court explained in Strickland, 466 U.S. at 686-87, 104 S.Ct. at 2063-64: A capital sentencing proceeding ... is sufficiently like a trial in its adversarial format and in the existence of standards for decision ... that counsel’s role in the proceeding is comparable to counsel’s role at trial — to ensure that the adversarial testing process works to produce a just result under the standards governing decision. Under Illinois law, a capital sentencing proceeding has two phases. Ill.Rev.Stat. ch. 38, 119-1. The first phase deals with whether the defendant may be sentenced to death at all. A defendant who has been found guilty of murder and who at the time of the commission of the offense has attained the age of eighteen may receive the death penalty if the State establishes beyond a reasonable doubt the existence of one of the aggravating factors set out in ¶ 9-l(b). In petitioner’s case, the jury found in accordance with 119-l(b)(6) that petitioner, and not another party to the crime, had actually killed Donald Bivens intentionally during the course of an armed robbery. The second phase of the capital sentencing proceeding concerns whether a death sentence should actually be imposed. Once there has been a finding that one or more of the factors set out in ¶ 9-l(b) exists, the jury, or the court if sitting as sentencer, then proceeds to consider additional aggravating and mitigating factors, such as but not limited to those set out in ¶ 9-l(c), and determines whether the defendant should be sentenced to death. Paragraph 9-l(g) provides that “if the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.” See also ¶19 — 1(h) (same standard when court acts as sentencer). That same paragraph further emphasizes that “unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to a term of imprisonment.” ¶ 9-l(g). Again in petitioner’s case, the jury unanimously found that there were no mitigating factors sufficient to preclude imposition of the death sentence, and the court consequently sentenced petitioner to death. Petitioner’s claims of ineffective assistance of counsel during the sentencing proceeding are all directed toward his attorney’s performance during the second phase of that proceeding, the hearing on additional aggravating and mitigating factors. Petitioner’s principal claim of attorney ineffectiveness during the sentencing hearing concerns the admission into evidence of the erroneous fact that petitioner had four pri- or felony convictions. The record reveals that at some time prior to the final phase of the sentencing proceeding, the Macon County State’s Attorney, Patrick Walsh, approached petitioner’s appointed attorney, Kenneth Kinser, and asked him if he would stipulate to the existence of four prior felony convictions on the basis of information contained in an “FBI rap sheet.” Those convictions allegedly included: (1) a 1965 New York conviction for attempted felonious assault with a knife, (2) a 1966 New York conviction for felonious assault with a tire iron, (8) a 1966 California conviction for second degree robbery, and (4) a 1969 Minnesota conviction for bank robbery, for which he was on parole at the time of the Bivens murder. Mr. Walsh had secured certified copies of the California and Minnesota convictions, but he had not been able to obtain certified copies of the two alleged New York convictions. Mr. Kinser showed the “rap sheet” to petitioner and asked him if it were accurate. Petitioner told Mr. Kinser that he thought the information was correct. Mr. Kinser apparently did not explain to petitioner the difference between an arrest and a conviction for purposes of the sentencing hearing, or the difference between a felony and a misdemeanor. On the basis of petitioner’s response, Mr. Kinser agreed to stipulate to the existence of the four prior felony convictions despite the fact that the State did not have certified records of the New York convictions and could not have proved their existence had they been requested or required to do so. Mr. Kinser later explained that he thought it would be less damaging to petitioner to stipulate to the convictions rather than have the jury see the official copies embossed with gold seals. He also stated, however, that he never inquired whether Mr. Walsh actually had such copies in his possession. During the second phase of the sentencing hearing, the court allowed Mr. Walsh to inform the jury of the four prior convictions and the sentences imposed in regard to each (three months for both the New York convictions, one year to life for the California conviction, and twenty years for the Minnesota conviction). Mr. Walsh then argued to the jury: Here’s a man who began a career of criminal activity in 1965 and 1966, with attempted assault with a knife, felonious assault with a tire iron, thirteen years ago. He then graduated, feeling that New York was no longer safe for his criminal pursuits, moved on to California. And in California committed second degree robbery, and received a sentence of one year to life, in the court in California in July, 1966. And after he was released from the penitentiary in California, he moved to Minnesota, figuring the east and west coasts were no longer safe for his activity, he’d try the midwest. And he moved to Minneapolis, worked on his talents there, and graduated to bank robbery, committed an armed robbery of a bank in Minneapolis, Minnesota in 1969. And received twenty years in prison. # * $ # # $ And now Mr. Lewis comes from Minneapolis to Decatur, Illinois, not only commits the offense of bank robbery, but aggravated kidnapping and murder.... And I think that the evidence in this case, prior criminal convictions of this defendant simply show that he is a totally anti-social human being. And I think that your decision as to what ought to be done with him now ought to be made in that light. (Trial Tr. B-288 to B-289). When petitioner initiated post-conviction proceedings in the Illinois courts, the State’s Attorney’s Office again made efforts to obtain certified copies of the New York convictions. Usual efforts to obtain the records again proved unsuccessful, but by exploiting a connection with a New York City police detective, Assistant State’s Attorney Jeff Justice and Assistant Attorney General Neal Goodfriend, both of whom were representing the State in the post-conviction proceedings, managed at some time during the post-conviction evi-dentiary hearing in 1983 to obtain certified records showing the disposition of the New York charges. These records indicated that the 1966 felonious assault charge had been dismissed and that with regard to the 1965 charge of attempted felonious assault, petitioner had pled guilty to a misdemeanor assault charge and received a three-month sentence. • Despite the fact that these records conclusively established that the information which had been presented to the jury concerning petitioner’s prior criminal record was inaccurate and false, Messrs. Justice and Goodfriend determined that they were under no obligation to disclose the New York records and accordingly withheld them from Steven Beckett, petitioner’s counsel at that time, and from Judge Harold Jensen, who was presiding at the post-conviction hearing. Moreover, in the State’s brief submitted to and during oral argument before the Illinois Supreme Court on appeal of the denial of post-conviction relief, Mr. Goodfriend represented that petitioner had four prior felony convictions, sometimes referring to the stipulation and sometimes not, even though he knew that that representation was false. After the Illinois Supreme Court had affirmed the circuit court’s denial of post-conviction relief and while certiorari was pending for the second time-before the Supreme Court of the United States, petitioner’s counsel was finally able, with the assistance of the NAACP Legal Defense Fund in New York, to obtain certified records indicating the disposition of petitioner’s two New York arrests, information which the State had possessed for approximately two years. For the first time, petitioner’s counsel learned that petitioner’s prior criminal record introduced at the sentencing hearing was inaccurate and that the two alleged New York felony convictions were nonexistent. On February 11, 1986, his counsel filed a “Motion for a Supervisory Order and for Post-Conviction Relief” with the Illinois Supreme Court in which he informed the court of the contents of the New York records. The Illinois Supreme Court summarily denied petitioner’s motion in March, although two justices dissented, finding that petitioner was entitled to a new sentencing hearing in light of the clearly inaccurate information which had been presented to the sentencing jury. People v. Lewis, 95 Ill.Dec. 371, 489 N.E.2d 1099 (1986) (Clark, C.J., and Simon, J., dissenting). Respondents contend that the issue of the accuracy of the New York convictions has been waived for purposes of federal habeas review because it was never presented to the Illinois courts until after the post-conviction proceedings were final. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594; Williams v. Lane, 826 F.2d 654, 659, 663 (7th Cir.1987). The district court found “cause” under Wainwright for the procedural default in “the fact that the Assistant State’s Attorney and Assistant Attorney General concealed the evidence about the New York convictions from the petitioner and the post-conviction judge.” Respondents argue that this finding runs counter to the Supreme Court’s holding in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397, that “the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” They contend that the information concerning the New York arrests and convictions was available in public records accessible to petitioner, and accordingly that the conduct of state officials in no way prevented petitioner from discovering the truth regarding the alleged New York convictions and raising his claim during the post-conviction proceedings. The difficulty which the State encountered in attempting to secure records of fifteen-year-old convictions from another jurisdiction clearly belies this argument. Indeed the reason why Mr. Walsh approached Mr. Kinser in 1979 about stipulating to the existence of four prior felony convictions, including the two from New York, was that he had been unable to obtain copies of the New York convictions through ordinary channels. Moreover, in 1983 when the State was again attempting to secure copies of the New York convictions prior to the post-conviction hearing in Illinois circuit court, an investigator with the State’s Attorney’s Office found it necessary to rely on a personal contact in the New York City Police Department for assistance in ultimately obtaining the relevant records. As an indigent death row inmate relying on the efforts of appointed counsel, petitioner did not have available to him all of the resources of the State in attempting to secure copies of the alleged New York convictions. He sought the help of the NAACP Legal Defense Fund in New York in locating the records, but that office was unable to produce certified copies of the New York records until the summer of 1985. Without the factual information contained in those records, any ineffective assistance of counsel claim based on Mr. Kin-ser’s stipulation to the existence of the New York convictions would have been useless for petitioner would have been unable to demonstrate prejudice as a result of Mr. Kinser’s error. In Murray v. Carrier, 106 S.Ct. at 2646, the Supreme Court suggested that “a showing that the factual or legal basis of a claim was not reasonably available to counsel” would constitute cause under Wainwright v. Sykes. Petitioner has made a sufficient showing that the factual basis of his claim concerning the New York convictions was not reasonably available to his counsel before mid-1985. Moreover, had Messrs. Justice and Goodfriend disclosed the contents of the New York records to Judge Jenson and petitioner’s counsel upon their receipt in 1983, petitioner would have been able to raise his claim during the post-conviction proceedings. To that extent we agree with the district court that the conscious decision of these two state officials deliberately to conceal crucial information relating to petitioner’s sentencing was “an objective factor external to the defense [which] impeded counsel’s efforts to comply with the State’s procedural rules.” Murray, 106 S.Ct. at 2646. Finally, petitioner did raise the accuracy of the New York convictions before the Illinois Supreme Court at the first available opportunity, in the form of the Motion for a Supervisory Order, but the Illinois Supreme Court declined the opportunity to comment on the merits and summarily denied the motion. For all of these reasons, petitioner has certainly established cause under Wainwright v. Sykes for any procedural default concerning the New York convictions. That petitioner was prejudiced by Mr. Kinser’s stipulation to the existence of two prior felony convictions which in fact did not exist can hardly be disputed. A defendant may not be sentenced “on the basis of assumptions concerning his criminal record which [are] materially untrue.” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690; see also United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (misinformation of a constitutional magnitude, such as uncounseled guilty pleas, may not be relied upon in imposing sentence); United States v. Cameron, 814 F.2d 403, 407 (7th Cir.1987). There is no dispute that the information concerning the New York convictions that was presented to the jury was untrue. We agree with the district court that it was also material. The difference between two prior felony convictions and four prior felony convictions in determining whether to impose the death penalty is without doubt significant. As the district court explained, while two prior convictions would constitute an aggravating factor bearing strongly on deciding the appropriate disposition of a case, “four prior convictions would indicate an absence of mitigating considerations and a life committed to criminal activity.” 656 F.Supp. at 193. Furthermore, the two New York convictions were described to the jury as involving violent crimes of assault, namely, attempted felonious assault with a knife and felonious assault with a tire iron, which might have weighed particularly heavy in the balance of aggravating and mitigating factors. Particularly in light of the gravity and more importantly the irrevocability of the sentence ultimately imposed on petitioner, there is certainly a reasonable probability that, but for Mr. Kinser’s unfortunate acquiescence in the admission of false evidence, the outcome of the proceeding would have been different, and petitioner would not have been sentenced to death. Under the Illinois statute, if only one juror believed that there were mitigating factors sufficient to preclude the imposition of the death sentence, then petitioner would have been sentenced to a term of imprisonment. Ill.Rev.Stat. ch. 38, ¶ 9 — 1(g). The above discussion of the cause and prejudice requirements in connection with the procedural default clearly foreshadows our holding with respect to the ineffective assistance of counsel claim. With petitioner’s life at stake, Mr. Kinser during a crucial phase of the sentencing hearing agreed to stipulate to the existence of four prior felony convictions without asking the State’s Attorney whether he had actual proof of those convictions in the form of certified copies. Instead Mr. Kinser relied on petitioner’s uninformed representation that he Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_casetyp1_7-2	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". Owen ORTHMANN, Plaintiff-Appellant, v. APPLE RIVER CAMPGROUND, INC., et al., Defendants-Appellees. No. 84-1290. United States Court of Appeals, Seventh Circuit. Argued Nov. 14, 1984. Decided March 19, 1985. Clint Grose and Shawn Bartsh, Grose, Von Holtum, Sieben & Schmidt, Minneapolis, Minn., for plaintiff-appellant. Robert F. Wall, Richards, Wall & Harris, Hudson, Wis., Thomas D. Bell, Doar, Drill & Skow, New Richmond, Wis., for defendants-appellees. Before CUDAHY and POSNER, Circuit Judges and SWYGERT, Senior Circuit Judge. POSNER, Circuit Judge. Owen Orthmann, age 19, was rendered a quadriplegic when he dove into the Apple River near the village of Somerset, Wisconsin, and his head struck a rock on the shallow bottom. A resident of Minnesota (to which he moved after the accident), Orthmann brought this diversity suit in a federal district court in Wisconsin against the village and against eight firms that comprise the Floater’s Association. Members of the Association rent inner tubes for floating down the river to tourists like Orthmann, who was injured when he interrupted his float to go on shore to do some diving. The district judge granted the motion of the members of the Floater’s Association, made under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint for failure to state a claim, and the village’s motion for summary judgment. Thus the complaint was dismissed in its entirety, and Orthmann has appealed. A statute of Wisconsin provides that a suit may not be brought against a public agency unless two conditions are satisfied: “written notice of the circumstances of the claim” must be served on the agency “within 120 days after the happening of the event giving rise to the claim,” unless the “agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant” agency, Wis.Stat. § 893.80(l)(a); and “a claim containing the address of the claimant and an itemized statement of the relief” sought “must be presented to the appropriate clerk [for the defendant agency,] ... and the claim ... disallowed,” id., § 893.-80(l)(b). No claim was ever presented to the village. Section 893.80(l)(b), unlike (l)(a), contains no excuses, and the Wisconsin courts interpret its requirement strictly (as must we in this diversity case, since the Wisconsin statute clearly is “substantive” for purposes of applying the rule of Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)). See Rabe v. Outagamie County, 72 Wis.2d 492, 499-501, 241 N.W.2d 428, 432-33 (1976); cf. Mannino v. Davenport, 99 Wis.2d 602, 614-15, 299 N.W.2d 823, 829 (1981). Orthmann is therefore barred from suing the village. But should he want to reinstitute his suit against the village (assuming it is not barred by the statute of limitations) by filing his section (l)(b) claim now, the question would arise whether, as the district court thought, he is barred anyway because he failed to file the notice required by section (l)(a), and we ought to address this question now, in order to minimize the parties’ uncertainty about the possibility of reinstatement. The accident occurred on July 19, 1980, and the complaint was not filed till July 13, 1983 — three years later. No written notice of the circumstances of Orthmann’s claim was ever served on the village. Orthmann says the village knew of the accident because, although it occurred outside of the village limits, a village policeman rushed to the scene along with men from the county sheriff’s office, and because three months after the accident an investigator for Orthmann sought information from that policeman and another village. policeman. But if knowledge of an accident by a municipality’s police officers were knowledge by the municipality, the notice statute would have little effect in personal-injury cases, since police are called to the scene of almost every serious accident, sometimes — as here — outside their own jurisdiction. In some cases the circumstances make it obvious that the municipality will be a defendant. For example, in Rabe v. Outagamie County, supra, 72 Wis.2d at 497, 241 N.W.2d at 431, where the plaintiff’s injury was caused by county employees who were loading tree stumps onto vehicles on county business, there could be no doubt that the county was the potential target of a tort suit. Here the accident occurred outside of the village limits and no village employees were involved, at least directly; the only theory of municipal liability is that the village was a lessor of a member of the Floater’s Association. This liability is not so transparent that actual notice can be presumed. However, the record indicates that, several months before bringing the present suit, Orthmann filed an identical suit in Minnesota against the same defendants, including the village. The filing of the suit gave the village actual notice of Orthmann’s claim. If Orthmann files his (l)(b) claim against the village, the claim is disallowed, and Orthmann refiles his suit against the village and shows that his delay in providing (by means of the Minnesota suit) notice of his claim was not prejudicial to the village, then the Wisconsin notice statute would not be a bar to his maintaining the suit. Regarding the dismissal of the complaint against the other defendants, a different issue is presented. As fleshed out by certain documents in the appellant’s appendix, of which more shortly, the complaint alleges that these defendants — a campground, a restaurant, and other businesses in Somerset — joined together in a commercial venture (the “Floater’s Association”) to promote innertubing on the Apple River. On the day of the accident Orthmann rented an inner tube from the campground, where he had camped the night before. The floater is supposed to float down a four-mile stretch of the river and when he comes to the end return on a bus hired by the defendants; the rental fee that Orthmann paid the campground included the bus ride. The defendants own most of the land on both sides of this stretch of the river and take various measures to keep the river clean, such as providing litter bins on the banks. The place where Orthmann dove from, however, was owned not by any of the defendants but by a family named Montbriand. A tree on the property had grown out over the river and kids liked to dive off it, but when Orthmann arrived the queue for the tree was too long and he decided to dive off the bank instead. The water was cloudy, and was reflecting the sun, so that Orthmann couldn’t see the bottom, but he was reassured by the fact that he had seen other people dive into the river in the same area without incident. If the accident had occurred while Orthmann was in the inner tube, there would be no doubt that the complaint should not have been dismissed on the pleadings. One who invites another to engage in a sporting activity for a fee owes him a duty of care. Of course, if the hazard was obvious, or so inseparable a part of the sport that it was a risk assumed by engaging in it, or if the defendants had no reason to know of the hazard (maybe some trespasser had dropped the rock into the river the night before the accident), they might well escape liability. But these issues could not be resolved on the pleadings. The complaint would be good against a Rule 12(b)(6) motion. It is true that only one defendant (the campground) dealt directly with Orthmann, leaving unclear the role of the other seven members of the Floater’s Association. But the complaint alleges- — not implausibly in light of the name of the association — that floating was a joint venture of the Association’s members; and whatever the ultimate truth of this allegation, it is enough to prevent a member from getting the complaint dismissed under Rule 12(b)(6) just because he did not deal directly with Orthmann. This is not to say that a restaurant which contributed to the cost of a flyer advertising floating, in the hope of getting business from floaters, would be liable as a joint tortfeasor for the torts of the firms actually engaged in renting inner tubes or launching sites. The restaurant would lack the “equal right to a voice in the direction of the enterprise” that is an element of the joint-enterprise doctrine. Restatement, Second, Torts § 491, comment c (1965); see also Prosser and Keeton on the Law of Torts § 72 and p. 519 (5th ed. 1984); Samson v. Riesing, 62 Wis.2d 698, 709-10, 215 N.W.2d 662, 668 (1974). But if the restaurant was a joint venturer in floating, it could not escape liability just by not dealing face-to-face with the floater who came to grief. See Pritchett v. Kimberling Cove, Inc., 568 F.2d 570, 579-80 (8th Cir.1977), and Kahle v. Turner, 66 Ohio App.2d 49, 53, 420 N.E.2d 127, 130 (1979) — cases somewhat like the present ease. We can take the analysis a step further, and assert with some confidence that if the defendants (or perhaps just one of them, if they were joint venturers) had owned the Montbriand property, with its popular tree, the complaint would withstand a Rule 12(b)(6) motion. Although the mere fact that you invite people into a part of your property for a fee does not make them business invitees on the rest of the property, see, e.g., Davis v. United States, 716 F.2d 418, 424 (7th Cir.1983), we are supposing a situation in which an enterprise trying to make a profit out of floating knows that its customers, while floating down the river, pass by land owned by the enterprise that is conveniently and enticingly fitted with a natural diving board, and that some of these customers land and dive from the tree and the surrounding property. Floating is a summer sport. (Orthmann was injured in July.) A brochure of the Floater’s Association shows as one would expect that floaters are young and wear bathing suits. Nothing is more natural than that some of them — maybe many of them — should combine floating with swimming, including diving from a tree invitingly adapted to such use. On these assumptions there would be an implied invitation to the enterprise’s customers to use the tree and surrounding land for diving into the river, and the enterprise would be prima facie liable if through its negligence a customer was injured while doing so. See, e.g., Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52 (1954). It is true, as we said earlier, that a landowner does not have to warn even his business invitees of obvious hazards; a department store does not have to put up signs telling its customers not to walk into the walls or catch their clothing in the railings of the escalators. Maybe the hazard of diving into a river whose bottom you cannot see is so obvious that it is in the same class. But if it is true as Orthmann states that he saw others diving without incident in the same area from which he dove, maybe the hazard was not so obvious in this case. The question cannot be resolved on the pleadings unless Wisconsin has crystallized a rule of law barring damages for anyone injured in such a diving accident, and we can find no such rule. See Gould v. Allstar Ins. Co., 59 Wis.2d 355, 208 N.W.2d 388 (1973). (If Orthmann had pleaded a violation of Wisconsin’s safe-place statute, Wis.Stat. §§ 101.01 et seq., as Gould indicates he might have done, then it would be altogether clear from Gould that diving into an opaque body of water was not contributory negligence per se under the statute.) Although Scheeler v. Bahr, 41 Wis.2d 473, 164 N.W.2d 310 (1969), did hold such conduct to be contributory negligence per se, Gould limited Scheeler to cases where the diver is merely a licensee, not as here a business invitee. And even if we could say that Orthmann was negligent as a matter of law, this would not authorize dismissal of the complaint, since contributory negligence is no longer a complete defense in Wisconsin, unless the victim’s negligence is greater than the injurer’s. Wis.Stat. § 895.045. It would make no difference that the defendants do not own the bottom of the Apple River and are forbidden by Wisconsin law to remove material from its bottom without approval of the state authorities. Wis.Stat. § 30.20. The negligence in the case we have put is not in placing a hazard in the river but in failing to warn of a hazard (here, that the river was too shallow for diving); this is like the Perkins case cited earlier, where the hazard consisted of hidden undercurrents in the river that ran past the defendants’ resort. See also Kesner v. Trenton, 158 W.Va. 997, 1000-06, 216 S.E.2d 880, 883-86 (1975). What makes this ease more difficult than our hypothetical variants is that the defendants do not own the property from which Orthmann dove. But according to an affidavit of one of the Montbriands, which Orthmann included in the appendix to his brief in this court, shortly after the accident the defendants came on the Montbriands’ land without asking their permission, and cut the tree down. The affidavit also states that the Montbriands had seen the defendants cleaning and maintaining the banks of the river on the Montbriands’ land. It is possible to infer that the defendants, though they did not own the Montbriand property, treated it as if they did — the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least (which is all that is necessary, as we are about to see) possession. This is not to say that the defendants could be held liable, under any tort theory we know, if their customers just strayed onto someone else’s property and got injured there. This is not because the defendants could not prevent such injuries; they might be able to prevent them quite cheaply and effectively by a warning sign, just as we have assumed that they might have been able to prevent an accident caused by an object that they were not authorized to remove from the river. It is because the law just has not yet imposed on landowners who invite the public onto their property the duty of inspecting their neighbors’ property to see whether any of their customers may be wandering onto it, and' endangering themselves by doing so. See, e.g., Stedman v. Spiros, 23 Ill.App.2d 69, 161 N.E.2d 590 (1959). Since a landowner has no right to inspect his neighbors’ lands, let alone to correct dangerous conditions on them, little would be accomplished, in general, by making him liable for those conditions along with the neighbors. And though one can think of exceptions — cases where the landowner knows of the condition without having gone on his neighbor’s land, and can correct it at trivial cost, as with a warning sign — the law has not seen fit to impose such liability. But if the landowner treats the neighbor’s property as an integral part of his, the lack of formal title is immaterial. Whoever controls the land is responsible for its safety. See, e.g., Husovsky v. United States, 590 F.2d 944, 953 (D.C.Cir.1978). That is why it is normally the tenant rather than the landlord who is liable to anyone injured as a result of a dangerous condition on leased land and why this field of tort law is more accurately described as land occupiers’ and possessors’ liability than as landowners’ liability. See, e.g., Prosser and Keeton on the Law of Torts, supra, § 57 at p. 386, § 63 at p. 434; Enis v. Ba-Call Bldg. Corp., 639 F.2d 359, 361 (7th Cir.1980). It would make no sense to treat an occupier more leniently just because his rights in the land were less well-defined than a tenant’s — or maybe were nonexistent. Suppose an amusement park when it built its parking lot had encroached on a neighbor’s land, and a customer of the amusement park was injured by a pothole in the part of the lot that the amusement park actually did not own (not yet having acquired it by operation of the doctrine of adverse possession) or have any right to occupy. The amusement park could not escape liability by pointing out that the hazard was not actually on its property. See, e.g., Merkel v. Safeway Stores, Inc., 77 N.J.Super. 535, 540-41, 187 A.2d 52, 55 (1962), where a grocery store was held liable for an injury resulting from its failure to remove snow and ice from a public sidewalk that “was the means of ingress and egress provided by defendant for its customers.” See also Banks v. Hyatt Corp., 722 F.2d 214, 225-27 (5th Cir.1984); MacLean v. Parkwood, Inc., 354 F.2d 770, 772 (1st Cir.1966). We imagine that the defendants have been reading this opinion with mounting fury, because in reciting the facts and drawing our legal conclusions from them we have relied on documents, such as the Montbriand affidavit, that have come into this case in a most irregular way. The plaintiff presented no evidence in the district court, which dismissed the complaint against the members of the Floater’s Association on the pleadings. But Orthmann had, as we mentioned earlier, brought an identical suit in Minnesota (he filed the present suit only because of doubts, which proved to be well founded, that the defendants could be served with process in Minnesota); and discovery in that suit had proceeded to the point of generating some deposition testimony and assorted other evidence, including the Association’s brochure. Orthmann put some of the evidence into the appendix to his brief in this court, along with some evidence created after the district court dismissed his complaint: the Montbriand affidavit is dated March 26, 1984; the complaint was dismissed on January 23, 1984. Of course this is a most irregular mode of proceeding; and of course these materials are no part of the official record before us on this appeal. See Fed.R.App.P. 10(a), 30(a); 7th Cir.R. 12(a). But bearing in mind that dismissal under Rule 12(b)(6) is proper only if the allegations of the complaint make clear that the plaintiff cannot state a claim, Orthmann was free on this appeal to give us an unsubstantiated version of the events of July 19, 1980 — provided it was not inconsistent with the allegations of the complaint — in order to show that the complaint should not have been dismissed on its face. It can make no difference that he went further and (unnecessarily) tried to prove some of those allegations in the appendix to his brief. The materials in his appendix have no standing as evidence but are usable to show how the accident might have happened. The complaint is very short— but considerably longer than the sample negligence complaint in the forms appendix to the Federal Rules of Civil Procedure; and Rule 84 says that “the forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.” Missing from the complaint is the tree, the other divers, the cutting down of the tree after the accident — indeed, even the fact that it was the bank rather than the inner tube that Orthmann dove from (a fact, however, that complicates rather than .eases Orthmann’s road to relief). But the complaint does allege that the defendants were joint venturers in floating, that they “did jointly control the maintenance and use of” the relevant stretch of the Apple River, that “said control ... included but was not limited to the following: clean-up of the river, access onto the river, regulations for activities on the river, safety on the river, and other activities and conditions incident to the use of the [river] for purposes of inner-tubing,” that Orthmann was a customer when he was injured, that he “was in the exercise of due care and caution for his own safety,” and that he was injured as a result of the defendants’ negligence “in failing to provide for the care and safety and well-being of their patrons and the general public in their maintenance and use of the Apple River.” All this may be somewhat unclear and unspecific but it satisfies the perhaps too modest burdens that the Federal Rules of Civil Procedure place on the pleader. The function of the complaint under the federal rules is to notify the defendant of the plaintiff’s claim rather than to detail the evidence which if true would show that the plaintiff ought to win his case. Of course, if, as is increasingly common, the plaintiff pleads his case in detail (to “educate” the judge or nudge the defendant toward settlement), he may find himself pleading facts that show, as a sparser complaint might not have done, that he has no cause of action — and then he is out of luck; he has set himself up for a Rule 12(b)(6) motion. See 5 Wright & Miller, Federal Practice and Procedure § 1357, at pp. 604-10 (1969). But Orthmann did not do that. He filed a brief complaint which merely fails to plead the facts showing his theory of liability; and this is no ground for dismissal. The defendants’ proper response is not to' move to dismissal but to serve contention interrogatories requiring the plaintiff to particularize his theory of suit, or to proceed to summary judgment. The critical passage in the district judge’s opinion dismissing the complaint is the following: “There is not ... any attempt on the part of the plaintiff to suggest in his pleading that such control of the diving site [as would be exercised by one who owned, operated, and maintained the site] was, indeed, exercised by the defendants.” But it was not the plaintiff’s burden to suggest any such thing in his pleading. His allegation that the defendants controlled “safety on the river, and other activities and conditions incident to the use of the Apple River near Somerset, Wisconsin, for purposes of innertubing,” was all the allegation that was necessary to plead a cause of action based on control of the site from which he dove. The tree on the Montbriand property could be one of the “conditions” referred to. Maybe the defendants will be able to move for summary judgment on the basis of affidavits that decisively refute Orthmann’s theory and explain away the implications of the Montbriand affidavit. We do not hold that Orthmann is entitled to a trial. But it was error to try to dispose of the case on the pleadings. So while the judgment in favor of the Village of Somerset is affirmed (without prejudice, however, to the right of Orthmann to attempt to reinstate his suit if he complies with section (l)(b) of the Wisconsin notice statute), the judgment in favor of the other defendants is reversed and the case is remanded for further proceedings consistent with this opinion. We shall award no costs in this court, and Circuit Rule 18 shall apply on remand. Affirmed in Part, Reversed in Part, and Remanded. 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_geniss	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Sorachai SIDA and Nongyao Puasirirut-skul Sida, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 80-7435. United States Court of Appeals, Ninth Circuit. Submitted April 9, 1981. Decided June 15, 1981. As Amended on Denial of Rehearing and Rehearing En Banc Dee. 21, 1981. M. Rito Corrales, Santa Ana, Cal., for petitioners. Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for respondent. Before PREGERSON and REINHARDT, Circuit Judges, and HARDY , District Judge. The Honorable Charles L. Hardy, United States District Judge for the District of Arizona, sitting by designation. PREGERSON, Circuit Judge: Mr. and Mrs. Sorachai and Nongyao Pua-sirirutskul Sida petition for review of the denial by the Board of Immigration Appeals (BIA) of Mrs. Sida’s motion to reopen the deportation proceedings. Because the BIA abused its discretion in denying Mrs. Sida’s motion to reopen, we reverse. Petitioners are husband and wife, natives and citizens of Thailand. Both entered the United States in 1969 as students. They left the country for one month in 1972 to be married in Thailand, and returned. In June 1977, their visas having expired, they were found deportable as overstays. At that time they requested and were granted additional time to file for suspension of deportation and voluntary departure. Two months later, in August 1977, petitioners applied only for voluntary departure, which was granted. In January 1978, Mrs. Sida moved to reopen the deportation proceedings on the ground that she was eligible for suspension of deportation. The unopposed motion was granted. At the hearing on May 8, 1978, however, petitioner’s counsel withdrew the application for suspension of deportation, stating that Mrs. Sida’s one month visit to Thailand in 1972 to be married interrupted the seven years continuous presence required for eligibility for suspension of deportation. In light of counsel’s representation, Mrs. Sida reapplied only for voluntary departure, which was again granted to both her and her husband. Although Mrs. Sida withdrew her application for suspension of deportation, the immigration judge, without holding an evidentiary hearing, nevertheless ruled on the application. He found that Mrs. Sida’s trip to Thailand was a meaningful departure which broke the seven year continuous presence requirement of 8 U.S.C. § 1254(a). One year later, in February 1979, new counsel for petitioners moved to reopen the deportation proceedings once more on the ground that Mrs. Sida was entitled to suspension of deportation. On April 18, 1979, the immigration judge denied the motion to reopen on the ground that Mrs. Sida had failed to present new, additional, and previously unavailable evidence as required by 8 C.F.R. 242.22. The immigration judge also ruled that: A failure to comply with the regulations as to new material might be excused if she had a meritorious case, but this is not the case. The burden is upon the [petitioner] to establish that she has seven years continuous physical presence in the United States. This she cannot do. Her trip to Thailand was a lengthy one involving several thousand miles. Of necessity it required that she obtain travel documents and make advance preparations. The purpose of the trip was to get married and as indicated on the suspension application, she in fact did marry within a week after her arrival in Thailand. This was not a casual spur of the moment excursion beyond the borders of the United States. Wadman v. INS, 329 F.2d 812 (9th Cir. 1964). It was a carefully planned deliberate trip which was “meaningfully interruptive” of her presence in the United States, Rosenberg v. Fleuti, 374 U.S. [449] 461 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963); Heitland v. INS, 551 F.2d 495 (2d Cir. 1977). This is not the type of case that I would excuse from compliance with the regulations governing motion to reopen. The motion to reopen will be denied. The BIA dismissed petitioners’ appeal from the denial of the motion to reopen. Petitioners now pursue their case before this court, contending that the BIA erred in refusing to reopen the deportation proceedings. The BIA may not grant a motion to reopen unless it is based upon new, material facts. 8 C.F.R. § 3.2 (1979) (emphasis added). The new facts must be supported by “affidavits or other evidentiary material.” 8 C.F.R. § 3.8 (1979). As the Supreme Court recently observed: The present regulation [8 C.F.R. § 3.2] is framed negatively; it directs the Board that it may not reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances a proceeding should be reopened. INS v. Wang, 450 U.S. 139, 143 n.5, 101 S.Ct. 1027, 1030 n.5, 67 L.Ed.2d 123 (1981). Failure to allege new facts supported by evidentiary material is an adequate ground for denial of a motion to reopen. Id. at 143, 101 S.Ct. 1030. Therefore two questions are presented: (1) Did Mrs. Sida allege new facts supported by evidentiary material; and (2) if so, did the BIA abuse its discretion in denying the motion to reopen. 1. New Facts The government asserts that Mrs. Sida, in support of the second motion to reopen, did not submit any new evidence by way of affidavit or other evidentiary material. The government argues that Mrs. Sida merely resubmitted her previously withdrawn 1978 application for suspension of deportation which asserted extreme hardship to herself and to her American citizen child. This is incorrect. Attached to the motion to reopen dated February 26, 1979, is previously submitted documentation plus a letter dated February 7, 1979, from the citizen child’s doctor stating: “This child is suffering from recurrent tonsillitis and pulmonary congestion and fever by history. This child historically becomes very ill in Thailand. He shouldn’t return to Thailand.” Mrs. Sida states that this respiratory condition was “recently discovered” when the child traveled to Thailand to visit his grandparents. Thus the record reflects that Mrs. Sida did submit new evidence in support of her motion to reopen. Perhaps the immigration judge did not believe the new evidence was material, but there are no findings in that regard. The doctor’s letter satisfies the “other evi-dentiary material” requirement of 8 C.F.R. § 3.8. 2. Abuse of Discretion In affirming the denial of the motion to reopen, the BIA did not address the government’s claim that no new evidence had been submitted. Rather, the BIA dismissed the appeal as a matter of discretion, stating: Inasmuch as the respondents have twice failed to leave the country voluntarily and have already had an opportunity to establish eligibility for suspension of deportation, we do not believe that reopening of proceedings is warranted a second time. The Supreme Court in INS v. Wang, supra, did not explicitly identify the standard of review of a denial of a motion to reopen. The Court appeared to suggest, however, that the abuse of discretion standard applies and that the BIA has discretion to deny a motion to reopen even if the alien establishes a prima facie case of eligibility for suspension of deportation. If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case. It will also waste the time and efforts of immigration judges called upon to preside at hearings automatically required by the prima facie allegations. INS v. Wang, 450 U.S. at 143 n.5, 101 S.Ct. at 1030 n.5, quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir. 1980) (en banc) (Wallace, J., dissenting). We hold that the BIA abused its discretion in denying the motion to reopen. The BIA ignored the new evidence presented in the motion to reopen. Instead, it refused to reopen the proceedings on the ground that the Sidas previously had been given two opportunities to apply for suspension of deportation, and had failed to do so; therefore, according to the BIA, their case did not warrant any consideration. This was improper. We have recently held that although aliens have no absolute right to the discretionary relief of suspension of deportation, they are entitled to due consideration of all relevant factors which may establish extreme hardship. Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981). In Santana-Figueroa, the BIA denied an alien’s request for suspension of deportation without discussing the basis of its decision. This court reversed and remanded, stating: [WJhen allegations are specific and supported by evidentiary material, and the Board denies eligibility for relief, it must give reasons for its decisions showing that it has properly considered the circumstances. To affirm on the theory that the Board necessarily considered whatever the petitioner asserted would free the Board of the obligation to articulate a reasoned basis for its decisions, eliminating any guaranty of rationality and foreclosing meaningful review for abuse of discretion. Id. (Citations and footnote omitted.) As with the discretionary relief of suspension of deportation, an alien is not entitled to a reopening of deportation proceedings. But the principles underlying our holding in Santana-Figueroa are equally applicable here. Just as an alien is entitled to consideration of all relevant factors that may establish extreme hardship, an alien should be entitled to consideration of new evidence presented in support of a motion to reopen. Otherwise we open the door to potentially arbitrary administrative decisions as to what new evidence will be considered and what new evidence will be cast aside. The better approach requires the BIA to consider an alien’s newly available evidence and to rule on the merits; it does not allow the BIA to refuse to consider new evidence whenever it feels that the alien, for whatever reason, does not merit any consideration. Requiring the BIA to address and rule on new evidence presented in a motion to reopen is not at odds with the Supreme Court’s decision in INS v. Wang. This approach does not compel the BIA to grant motions to reopen where a prima facie case is established. Rather, this approach compels the BIA to address the evidence presented, and state the reasons why, for example, the evidence is not sufficient under the applicable regulations; why a prima facie case has not been made out; or why, if a prima facie case is made out, a reopening is not warranted. We note that the BIA’s decision makes little sense. There is no limit, by statute or regulation, on the number of times an alien may move to reopen deportation proceedings. The only prerequisite for filing a motion to reopen is the existence of new facts supported by affidavit or other evidentiary material. It is unfair to grant the opportunity to present newly available evidence and then to refuse to consider the evidence on the ground that the alien had other opportunities to apply for discretionary relief. Moreover, if the medical evidence was not previously available, it could not have been presented earlier. If the evidence was previously available, the BIA should have so found instead'of summarily dismissing the appeal. Our problem is with an administrative system that holds out the opportunity to present new evidence, but does not assure that the new evidence will be meaningfully evaluated. This is what the BIA did here — an action we cannot condone. Accordingly we remand this matter to the BIA with instructions to reconsider the motion to reopen and to articulate the underlying reasons and basis for any rulings it makes. See Perez v. INS, 643 F.2d 640, 641 (9th Cir. 1981). Finally, we also point out that the immigration judge erred in determining that the one month trip to Thailand was “meaningfully interruptive” of Mrs. Sida’s stay in the United States. In making this determination, the immigration judge relied on factors previously rejected by this court in Kamheangpatiyooth v. INS, 597 F.2d 1253, 1257-58 (9th Cir. 1979). See also Gallardo v. INS, 624 F.2d 85 (9th Cir. 1980). If on remand the Board concludes that Mrs. Sida has established extreme hardship, it will then have to determine, under the test set forth in Kamheangpatiyooth, whether Mrs. Sida has satisfied the seven year residence requirement. The Board will also have to determine whether Mrs. Sida meets the standards for good moral character. As noted in footnote 1, supra, all three requirements must be satisfied before the Board and the Attorney General may exercise their discretion to suspend deportation. REMANDED. . Motions to reopen permit an alien to apply for the discretionary relief of suspension of deportation. Suspension of deportation is available if the alien demonstrates: (1) seven years continuous presence in the United States; (2) good moral character during that time; (3) extreme hardship “to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1254(a)(1). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_district	D	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". The BADA COMPANY, a California corporation, Plaintiff-Appellant, Cross-Appellee, v. MONTGOMERY WARD & CO., Incorporated, an Illinois corporation, Defendant-Appellee, Cross-Appellant. The BADA COMPANY, a California corporation, Plaintiff-Appellant, Cross-Appellee, v. FMC CORPORATION, a Delaware corporation; Weaver Manufacturing Co., a Division of Dura Corporation, a Michigan corporation; Big Four Industries, Incorporated, an Ohio corporation, Defendants-Appellees, Cross-Appellants. Nos. 23436, 23433. United States Court of Appeals, Ninth Circuit. April 28, 1970. Rehearing Denied in No. 23433 June 2, 1970. C. Russell Hale (argued), of Christie, Parker & Hale, M. Roy Spielman, Pasadena, Cal., for appellant. Lewis E. Lyon (argued), Charles G. Lyon, of Lyon & Lyon, Los Angeles, Cal., for appellee. Before DUNIWAY, HUFSTEDLER and WRIGHT, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: Appellant is the owner of two patents relating to a system of balancing automobile wheels, and of the registered trademarks “Micro” and “Micro-Precision,” applicable to wheel weights and balancers used in the patented system. This action is for infringement of both patents and trademarks, and for unfair competition. The District Court found that the patents were invalid for obviousness, 35 U.S.C. § 103, but that if valid they had been infringed. It held the trademarks valid and infringed, and awarded damages. Defendants’ counterclaim, alleging patent and trademark misuse, was dismissed, and it has been abandoned in oral argument here. I. The record shows that plaintiff’s predecessor in title was the inventor of a method for balancing automobile tires covered by patent No. 3,002,388. The patented system involves four steps. First, the wheel is placed horizontally on a balancer equipped with a spirit level and allowed to tilt freely from side to side. The bubble in the spirit level indicates the location of the “light spot” on the wheel — the point of greatest imbalance and the one which tips up the highest when the wheel tilts. Second, four equal weights are placed on the rim of the wheel, two on each side of the light spot and immediately adjacent to it. The weights are of a size such that when all four are placed at the light spot, they are sufficient to correct the tilt of the wheel and just slightly to “overbalance” it. Third, the pairs of weights are moved away from the light spot equal distances along the rim, until the induced overbalance is precisely corrected and the angle of tilt, as shown by the spirit level, is zero. Fourth, one of the weights in each pair is fastened into position; the other is removed, and fastened into the corresponding position on the other (nether) side of the wheel. The system is simple and easy to apply, and there is no dispute that its application solved what had been a problem in the industry — the development of a speedy method for wheel balancing that could be taught to relatively unskilled workers. Commercial success followed. The District Court however found, and we agree, that each of the elements in the patented process was covered by the prior art. Thus the Booth patent, British No. 731,459, discloses a static balancer on which the wheel is placed horizontally and which utilizes a spirit level to indicate imbalance. The Booth patent, the Hume patent, No. 2,052,295, and the Morse patent, No. 2,136,633 all involve placing weights at the light spot and “fanning” them out until the wheel is precisely balanced. The Holl patent, No. 2,592,804, and the Lowe pajtent, No. 2,700,892, disclose the division of weights and the attachment of one in each pair to the opposite rim. The patent in suit, then, is merely a combination of known prior art elements. We are enjoined to scrutinize such patents “with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements.” Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950). To be sure, the combination here filled a long-felt need and enjoyed commercial success. But that is not enough to show patentability. Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57, 90 S.Ct. 305, 24 L. Ed.2d 258 (1969); Carborundum Co. v. Wilbanks, 420 F.2d 43 (9th Cir., 1969). Nor is this a case where a joinder of known elements produced a wholly unanticipated result, cf. United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L. Ed.2d 572 (1966). On the contrary, the spirit level indicated the light spot, as it had before; moving the weights brought the wheel into static balance, as it had before; and transferring one weight to the other rim achieved dynamic balance, as it had before. “Two and two have been added together, and still they make only four.” Great A. & P. Tea Co., supra, 340 U.S. at 152, 71 S.Ct. at 130. Essentially the same is true of the device covered by appellant’s patent No. 3,055,221, an improvement to the prior art pivot point wheel balancer. Pivot point wheel balancers áre not different, in their essentials, from a teeter-totter of the old-fashioned type. The wheel to be balanced is placed on a support member, attached in its turn to a metal ball. When the balancer is in the “on” position, the ball pivots on a flat metal platform, tipping to one side or the other if the wheel is imbalanced. When the balancer is in the “off” position, ball and platform are disengaged. This mechanism occasioned trouble if the operator carelessly loaded a wheel onto the balancer while the latter was in the “on” position. The sudden impact had a tendency to flatten the ball against the platform, impeding the free rotation of the ball and destroying the accuracy of the balance. The patented device consists of a spring and cam arrangement that automatically disengages ball and platform whenever a wheel is removed from the balancer. The effect is to prevent damage to the ball by making it impossible to leave the balancer accidentally in the “on” position. It is conceded that the pivot point balancer was known to the prior art. We have examined the spring and cam arrangement added to the prior art balancer and we cannot escape the conclusion that it would have been obvious to one skilled in the art. The use of springs and cams to return mechanical devices to their initial positions is old. And we cannot say that more than ordinary skill and ingenuity are shown by the mere fact that the patented device employed the weight of the wheel being balanced to prevent an untimely return to the “off” position, rather than the pressure of the operator’s foot (as did the prior art Holl patent No. 2,592,804). When hoary devices like springs and cams are involved, it will be a rare case indeed when mere artful placement of them will be non-obvious. The improvement, we think, “is the work of the skilful mechanic, not that of the inventor.” Hotchkiss v. M. Greenwood & Co., 52 U.S. (11 How.) 248, 267, 13 L.Ed. 683 (1851). We affirm the District Court’s conclusion that the patents were invalid. II. As to the trademarks, the question is whether the court below erred in finding that they were not merely descriptive of the articles involved. The law is that a word which is in its primary meaning merely descriptive of the goods to which it is applied may not be appropriated as the exclusive trademark of a single seller, since one competitor will not be permitted to impoverish the language of commerce by preventing his fellows from fairly describing their own goods. Lanham Act § 2(e), 15 U.S.C. § 1052(e); Delaware & H. Canal Co. v. Clark, 80 U.S. (13 Wall.) 311, 20 L.Ed. 581 (1871); Rohr Aircraft Corp. v. Rubber Teck, Inc., 266 F.2d 613, 623 (9th Cir. 1959); Telechron, Inc. v. Telicon Corp., 198 F.2d 903 (3d Cir. 1952). If, however, a mark which is merely descriptive in its primary meaning acquires over time a secondary and distinctive meaning which serves to identify the goods of a single merchant, then the law will afford protection against unfair appropriation of the benefits resulting from the mark’s secondary meaning. Lanham Act § 2(f), 15 U.S.C. § 1052(f); Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195 (1938); Safeway Stores v. Safeway Properties, 307 F.2d 495 (2d Cir. 1962); Wilhartz v. Turco Products, 164 F.2d 731 (7th Cir. 1947). Applying these principles to the instant case, we have no difficulty concluding that the mark “Micro,” as applied to wheel weights, is merely descriptive. Both in its advertising and in its brief here, plaintiff contends that its system allowed wheels to be balanced with weights of the smallest possible size. “Micro” appears in dictionaries and in common usage as a combining form meaning extremely small, or tiny. Plaintiff’s mark, therefore, is exactly analogous to other marks relating to the size of goods which have been held merely descriptive. George Ziegler Co. v. Tom Huston Peanut Co., 37 C.C.P.A. 947, 181 F.2d 237 (1950); Little Tavern Shops v. Davis, 116 F.2d 903 (4th Cir. 1941); Keller, Inc. v. Chicago Pneumatic Tool Co., 298 F. 52 (7th Cir. 1923). Equally descriptive is the mark “Micro-Precision,” as applied to wheel balancers and weights. Certainly the element “Precision,” as applied to a balancer or balancing weight, conveys merely that the system of balancing is accurate and precise; the term is descriptive, and it has been so held. Precision Apparatus Co. v. Precision Meter Co., 6 Misc.2d 817, 165 N.Y.S.2d 853 (1956). The addition of the element “Micro” only strengthens the meaning, and denotes that the system is more than ordinarily accurate and precise. It is true that “micro” in this sense appears in no dictionary, and were we grammarians we should perhaps flinch at its use. Be that as it may, we are required to consider standards of meaning not our own, but prevalent among prospective purchasers of the article. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 699 (2d Cir. 1961). And, however barbarous the use, we have no doubt that in the jargon of the trade “micro” functions as little more than an inexact intensified for “precision.” We think, therefore, that the District Court erred in holding the plaintiff's trademarks ■ non-descriptive. Since no showing as to secondary meaning has been made, the judgment as to the validity of the trademarks must be reversed. Affirmed in part, reversed in part. 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_casetyp1_7-3-3	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes". LEON ISRAEL & BROS., Inc., v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. Circuit Court of Appeals, Fifth Circuit. February 1, 1928. Petition for Reconsideration of Decree Denied February 20, 1928. Rehearing Denied February 27, 1928. No. 5107. 1. Shipping <@=>132(3%) — Holder of bills of lading seeking recovery from carrier for delay in shipment had burden to prove ships leaving port had available cargo space. Holder of bills of lading seeking to recover damages from carrier for. delay in delivery of coffee shipment had burden to show that ships leaving port in Brazil for United States had available cargo space. 2. Shipping <S=>132(5'/2) — Proof of vessel’s improper stowage of cargo held not to sustain recovery of damages for delay where carrier was not limited to use of that ship. Where carrier agreed by bills of lading to transport coffee by its steamer Tuladi “or any other steamer or steamers,” claim for damages in libel on account of delay in shipment was not sustained by proof that Tuladi’s failure to take entire shipment was due to improper stowage of cargo, since there was no obligation to transport shipment by any particular steamer. 3. Shipping <§=>118 — Carrier agreeing to deliver coffee by steamer named “or other steamer” was merely obliged to carry shipment within “reasonable time.” Carrier who agreed to transport coffee from Brazil to New Orleans by its steamer Tuladi “or any other steamer” was. under obligation merely to transport shipment within a reasonable time; determination of wbat constitutes “reasonable time” being- dependent upon facts and circumstances of particular case. [Ed. Note. — For other definitions, see Words and .Phrases, First and Second Series, Reasonable Time.] 4. Shipping <§=>111 — Deposit by carrier with shipper of goods received after issuance of bills of lading made -consignor warehoused man. Redelivery by carrier of goods delivered for shipment on- vessel, after issuance of bills of lading, made shipper accepting redelivery warehouseman. 5. Shipping <§=>105 — Delivery on board lighters under carrier’s control, following custom of port, held to render bills of lading effective. Delivery of goods on board lighters under carrier’s control, according, to a custom of the port, held to constitute good delivery- to carrier, sufficient to render bills of lading binding. 6. Shipping <§=>117 — Upon issuing bills of lading, carrier was under duty to see that delivery of goods shipped was made only to holder. Carrier by -water issuing bills of lading was under duty to see to it that delivery of goods was made only to holder, and could not, by returning goods to shipper, escape liability for delay. 7. Shipping ©=>l 13 — Holder of bilis of lading held entitled to damages from carrier for delay, notwithstanding carrier’s redelivery of goods to shipper. Failure of carrier to ship bags of coffee delivered to it from Brazil to New Orleans within reasonable time held to render carrier liable to purchaser of coffee holding bills of lading for damages resulting from delay, notwithstanding shipper to whom carrier had made redelivery was to blame for delay, since carrier was responsible for safe-keeping and return of the coffee subsequently deposited with shipper as warehouseman, and holder was entitled to rely on bills of lading. 8. Shipping 118 — Failure to ship all of coffee delivered carrier on steamer having sufficient space held unreasonable delay, rendering carrier liable for damages. Under bills of lading providing for transportation from Brazilian port by steamer Tuladi, “or other steamer or steamers,” of coffee shipment to New Orleans, failure of carrier to make shipment on steamer arriving with space enough to take all of coffee remaining constituted failure to ship within reasonable time, rendering carrier liable to holder of bills' of lading for damages resulting from delay with reference to coffee subsequently shipped. 9. Shipping !31 — Damages for carrier’s de. lay in delivery held difference between market value of goods when shipment should have been delivered and value on date of actual delivery. In libel by holder of hills of lading against carrier for delay in delivering shipment of coffee from Brazilian port to New Orleans, measure of damages for unreasonable delay held difference between value of coffee when it should have been delivered and value at date when coffee was actually delivered. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis IT. Burns, Judge. Libel by Leon Israel & Bros., Inc., against the United States Shipping Board Emergency Fleet Corporation. From a decree of dismissal (18 F.[2d] 627), libelant appeals. Reversed and remanded. Edwin T. Merrick, Ralph J. Schwarz, and Morris B. Redmann, all of New Orleans, La., for appellant. Edouard F. Henriques, Sp. Asst, in Admiralty to U. S. Atty., of New Orleans, La., for appellee. Before WALKER, BRYAN and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is an appeal in admiralty from a decree dismissing a libel which sought to recover damages for delay in delivery of a shipment of coffee from Victoria, Brazil, to New Orleans. On May 31, 1920, Gerhardt & Co. delivered to the United States Shipping Board Emergency Fleet Corporation, appellee, at Victoria, 2,000 bags of coffee for transportation to New Orleans; and on the same date appellee issued its bills of lading calling for delivery in New Orleans to a bank which transferred them to appellant, the purchaser. The bills of lading provided for transportation by appellee’s steamer Tuladi “or other steamer or steamers,” whether belonging to it or not. The bills of lading were issued, as was the custom at Victoria, while the coffee was on lighters under appellee’s control, but whether before or after the Tuladi arrived in port is not clear from the evidence. Until about the 1st of July of 1920 appellee had only three steamers that brought coffee to the United States from South American ports. Victoria was one of these, and, being the farthest north, was the last loading port. The Tuladi took only 400 of the 2,000 bags here involved; and appellee redelivered the remaining 1,600 bags to Gerhardt & Co., taking their warehouse receipt therefor. As no other vessel of its line was expected for some time, it engaged space for the bags of coffee left over in the Lloyd Brasiliero steamer Campos, which was the next vessel expected. The Campos arrived at Victoria on the 14th of June, but while entering port struck a rock and was forced to abandon its voyage. On July 5, the steamer Uberaba arxived with space enough to take the balance of appellant’s coffee, but actually took only 1,023 bags, which still left unshipped 577 of the bags included in the bills of lading held by appellant. The Uberaba sailed on July 16. Two other ships arrived at Victoria after the departure of the Tuladi and before the arrival of the Uberaba; but they may be left out of consideration, as appellant failed to meet the burden that was upon it to show that either of them had any available cargo space. After the Uberaba sailed, the Glenaffric arrived and could have carried the balance of appellant’s coffee, but took only 149 bags. • Finally- the balance of 428 bags were shipped on the Easterner. The Tuladi arrived in New Orleans on June 23, the Uberaba on August 20, the Glenaffrie on August 28, and .the Easterner on September 27. In the meantime the market value of coffee at New Orleans had greatly declined, and was less, on the date of each successive arrival just above stated, than it had theretofore been since the issuance of the bills of lading. Gerhardt & Co., without appellee’s knowledge, substituted other coffee for appellant’s coffee on the Uberaba and on the Glenaffrie. Appellant contends that the Tuladi’s failure to take the entire shipment of 2,000 bags was due to improper stowage of cargo. It may be assumed that a claim for damages on that ground would be sustainable if the bills of lading had been issued on behalf of that steamer. But they were not so issued. On the contrary, the obligation was, in substance, to transport by the Tuladi or by any other steamer. The extent of. appellant’s obligation, therefore, was to carry within a reasonable time. United States Shipping Board v. Texas Star Flour Mills (C. C. A.) 12 F.(2d) 9. What should be considered a reasonable time depends upon the facts and circumstances of each particular ease. Victoria was not a port where many outgoing vessels bound for New Orleans were to be expected. Under all the circumstances we are of opinion that a shipment on the Uberaba would have satisfied the requirement as to time. It is admitted that the last-named steamer could have taken the whole 1,600 bags which the Tuladi did not take. Appellee seeks to shift the hlame for its failure to do this to Gerhardt & Co., who, instead of redelivering appellant’s coffee, called for by their warehouse receipts, substituted without appellee’s knowledge, the coffee of other consignees. Gerhardt & Co. accepted redelivery in their capacity as warehousemen, not from the consignee, hut from the carrier; and this was done after the issuance of the bills of lading. Delivery, according to a custom of the port, on board lighters under appellee’s control, constituted a good delivery to appellee, and was therefore sufficient to render the bills of lading binding obligations. Bulkley v. Naumkeag Cotton Co., 24 How. 386, 16 L. Ed. 599. Upon issuing its bills of lading, it became appellee’s duty to see to it that delivery was made only to the holder thereof. Pollard v. Vinton, 105 U. S. 7, 26 L. Ed. 998. It could not return the goods to the shipper and escape liability for delay, but was responsible for the safe-keeping and return of the coffee subsequently deposited with Gerhardt & Co¡ as warehousemen. Appellant was entitled to rely on the bills of lading. Appellee is therefore liable for the delay in delivery of the 577 bags of coffee that occurred after the date of arrival in New Orleans of the Uberaba. The measure •of damages is the difference between the market .value on the date when these 577 bags should1 have been delivered and the dates when they were in faet delivered. United States Shipping Board v. Florida Grain & Elevator Co. (C. C. A.) 20 F.(2d) 583. The decree is reversed, and the cause remanded, for further proceedings'.not inconsistent'with this opinion. ■■■■ .... On Petition for Reconsideration and Correction of Decree. PER CURIAM. The petition of the' appellee in the above numbered and entitled cause for a reconsideration and correction of the decree therein is denied. Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
songer_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. GILCHRIST-FORDNEY CO. v. RUSSELL. (Circuit Court of Appeals, Fifth Circuit. February 12, 1927.) No. 4810. 1. Public lands <§=»157 — State held to have conveyed whatever title it had to land previous to deed to plaintiff. A state held to have previously conveyed whatever title it had to land and a deed to plaintiff held to convey no title. 2. Public lands <S=»157 — Statute relating to “Issuance” of land patents by state held to include delivery (Hemingway’s Code, Miss. § 5282). Under Hemingway’s Code Miss. § 5282, providing that, on an opinion of the Attorney General that land to which the state has issued a patent did not. belong to the state, the land commissioner shall cancel the patent and return the price received to the patentee “issuance” of the patent includes its delivery. In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. Action by S. D. Russell against the Gilchrist-Fordney Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded. Stone Deavours and Henry Hilbun, both of Laurel, Miss. (J. A. McFarland, of Bay Springs, Miss., on the brief), for plaintiff in error. Robert L. Bullard, of Hattiesburg, Miss., for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is a suit in ejectment. The title of the plaintiff, Russell, is based on a forfeited tax patent from the state of Mississippi, dated April 29, 1924, and issued because of the nonpayment of taxes for the year 1874. The defendant traced its title to the source, but also introduced in evidence a forfeited tax patent of the same land, dated October 14, 1904, to G. W. Holland, an application by Holland to cancel that patent, a letter from the land commissioner submitting that application to the Attorney General, and a letter from the latter in reply, stating that the land described in the patent did not belong to the state, an indorsement by the commissioner, dated March 15, 1906, canceling the patent, and a voucher to Holland for the purchase price. No deed or conveyance from Holland back to the state was shown. The trial court directed a verdict and entered judgment thereon for plaintiff, and defendant assigns error. We are of opinion that the evidence is sufficient to show that the state conveyed whatever title it had to Holland in 1904, and therefore in 1924 had no title to convey to plaintiff. Whether the state’s title was valid or not is immaterial; if valid, it passéd to Holland; if invalid, plaintiff did not acquire any. It is argued on behalf of plaintiff that the judgment is correct, because the evidence fails to show delivery of the Holland patent. Hemingway’s Code, § 5282, provides that, if the state has issued or shall issue a patent for land to which it holds • no title, the land commissioner shall investigate and report to the Attorney General, and the latter, if he shall find that the land so patented did not belong to the state, shall so advise the former, who shall thereupon mark such patent canceled, and issue his voucher to the patentee for the amount received by the state. In our opinion the issuance of the patent there referred to includes delivery, and it was not the intention of the Legislature to provide for the cancellation of patents that had merely been signed, but not delivered. If it had been discovered after signing, but before delivery, of a patent that the state had no title, the provision for cancellation would have been wholly unnecessary. The authorization to return the purchase price implies that the patentee had accepted title. The procedure prescribed by that statute was followed by the state’s officials in regard to Holland’s patent. Upon the execution of the patent in 1904 it was the duty of the land commissioner to deliver it to the patentee, and the presumption is that he performed that duty. That the purchase price had been paid is to be inferred from the fact that it was returned to the purchaser. To conclude that the patent to Holland was not delivered is to ignore the undisputed documentary evidence that it was issued. The cancellation of that patent did not have the effect of placing the title back in the state. To accomplish that, a deed from Holland was necessary (McAllister v. Mitchener, 68 Miss. 672, 9 So. 829); and none was shown. The judgment is reversed, and the cause remanded for a new trial. 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_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Plaintiff-Appellee, v. Cecil J. BISHOP, Defendant-Appellant. No. 71-1950. United States Court of Appeals, Ninth Circuit. Feb. 11, 1972. Rehearing Denied May 1, 1972. J. Richard Johnston (argued), of Johnston, Klein, Horton & Solomon, Oakland, Cal., for appellant. John P. Burke (argued), Meyer, Rothwacks, Crombie, J. D. Garrett, Joseph H. Reiter, Dept, of Justice, Fred B. Ugast, Acting Asst. Atty. Gen., John P. Hyland, U. S. Atty., Sacramento, Cal., for appellee. Before ELY and WRIGHT, Circuit Judges, and POWELL, District Judge. Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation. POWELL, District Judge: This appeal is taken from conviction on three counts of wilfully making and subscribing, under penalties of perjury, false income tax returns in violation of 26 U.S.C. § 7206(1). The taxpayer was a practicing attorney in Sacramento, California. He also operated a walnut ranch near Red Bluff, California, which was managed by his stepmother. During the years covered by the indictment, 1963, 1964, and 1965, the ranch operated at a loss. The taxpayer reported no tax for the years 1963 and 1964; his tax in 1965 was $1,018.98. The charge of false declaration on the taxpayer’s personal income tax returns arose out of items which he listed as deductible farm expenses incurred in the operation of the ranch. As ranch manager, the taxpayer’s stepmother kept records of the day-to-day expenses. To meet these expenses the taxpayer sent weekly checks to his stepmother; occasionally he paid creditors directly. At the end of the year his stepmother furnished an itemized accounting of all expenses, to which all expenses paid directly to creditors were added. The lists of expenses furnished were turned over to one of the secretaries in the taxpayer’s law office. From these lists with other expenses, schedules of expenses were prepared, which were entered by the taxpayer on his income tax returns. The understatement of income resulted from the addition of expenses. To the itemized list of expenses, including the expenses paid directly to creditors, the taxpayer added all the payments made to his stepmother as ranch manager. The effect was to double deductible expenses. This procedure resulted in the overstatement of farm expenses in the following amounts: in 1963— $19,923.87; in 1964 — $17,021.70; and in 1965 — $10,062.86. The taxpayer testified that he relied upon the computations of his stepmother and his legal secretary. The taxpayer complains of three errors, specifically that: First, in his prosecution for violation of 26 U.S.C. § 7206(1), he was entitled under the evidence to a jury instruction by which the jury could find him guilty of a violation of 26 U.S.C. § 7207, as a lesser included offense; Second, it was error to admit his 1961 return; and Third, it was error to admit that an item of farm income accruing in 1965, was reported in his 1964 return. The taxpayer’s first argument is well taken. Rule 31(c) of the Federal Rules of Criminal Procedure permits the jury to find the defendant guilty of an offense not charged in the indictment if that offense is “necessarily included in the offense charged.” The instruction submitted and rejected was essentially 26 U.S.C. § 7207, which is a misdemeanor. The contention is that this section is a lesser included offense of 26 U.S.C. § 7206(1). The doctrine of the lesser included offense requires that there be similar factual elements as to both the lesser and the greater offenses; but that the elements of the lesser offense be included within, but not completely subsumed by the greater. See Olais-Castro v. United States, 416 F.2d 1155, 1157 (9th Cir. 1969); James v. United States, 238 F.2d 681, 683 (9th Cir. 1956); 8 Moore’s Federal Practice If 31.03. Both Sections 7206(1) and 7207 contain the element of wilfulness. In income tax prosecutions this circuit has repeatedly interpreted the word “wilfulness”, as used in a misdemeanor statute, to mean something less than the same word “wilfulness” used in a felony statute. United States v. Haseltine, 419 F. 2d 579 (9th Cir. 1969); United States v. Fahey, 411 F.2d 1213 (9th Cir. 1969), cert. denied, 396 U.S. 957, 90 S.Ct. 430, 24 L.Ed.2d 422 (1969); Eustis v. United States, 409 F.2d 228 (9th Cir. 1969); Edwards v. United States, 375 F.2d 862 (9th Cir. 1967); Martin v. United States, 317 F.2d 753 (9th Cir. 1963); Abdul v. United States, 254 F.2d 292 (9th Cir. 1958). Abdul v. United States, 254 F.2d 292, 293 (9th Cir. 1958), best highlights the distinction drawn under the tax statutes between felonies and misdemeanors: “The meaning of the word ‘wilfully’ as used in the tax statutes has been considered in a number of cases and seems to have come to rest in this Circuit, as well as others, as meaning with respect to felonies, ‘with a bad purpose or evil motive.’ But the meaning of the word ‘wilfully’ as used in the statute defining a misdemeanor has not as yet reached such repose.” (citations omitted.) See also, United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 78 L.Ed. 381 (1933). The court instructed the jury in Abdul v. United States, 254 F.2d at 294, with the following definitions of wilfulness: “The word ‘wilful’ as used in [the misdemeanor] counts * * , that is, failing to make a tax return, means with a bad purpose or without grounds for believing that one’s act is lawful or without reasonable cause, or capriciously or with a careless disregard whether one has the right so to act. The word ‘wilful’ as used in the [felony] counts * * that is, in failing to truthfully account for and pay over the taxes, means with knowledge of one’s obligation to pay the taxes due and with intent to defraud the Government of that tax by any affirmative conduct-. Further, with respect to these counts, wilfulness implies bad faith and an evil motive.” (Emphasis added.) These extended instructions in Abdul were intended to clarify the meaning of “wilful” in the misdemeanor counts, under Sections 7203 and 7207. Both Sections 7206(1) and 7207 apply to the filing of false and fraudulent returns. Sansone v. United States, 380 U.S. 343, 347-349, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Violation of Section 7207 is a misdemeanor, whereas violation of Section 7206(1) is a felony. Under the evidence presented the elements of the two offenses are the same, with the exception of the element of wilfulness. Following Abdul “wilfulness”, within the meaning of Section 7206(1), requires proof of an evil motive and bad faith. Evidence under Section 7207 need only show unreasonable, capricious, or careless disregard for the truth or falsity of income tax returns filed. Under the circumstances of this case it was error to reject an instruction embodying Section 7207, as a lesser included offense. Since this case will be remanded for retrial it is not necessary to determine the merits of the second and third assignments of error. Reversed and remanded for a new trial in accordance with this opinion. . “Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,-000, or imprisoned not more than 1 year, or both. Any person required pursuant to sections 6047(b) or (c), 6056, or 6104 (d), to furnish any information to the Secretary or any other person who willfully furnishes to the Secretary or such other person any information known by him to be fraudulent or to be false as to any material matter shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.” . “Any person who— 1. Declaration under penalties of perjury. — Wilfully makes and subscribed any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; ***** shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.” . Section 7206(1) contains the added element of subscription under “penalties of perjury,” which Section 7207 does not. However, where an individual income tax return is filed, Section 6065(a), in conjunction with Treas.Reg. § 1.6065-1 (a), 26 C.F.R., imposes this element under Section 7207 by operation of law. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_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. SECURITIES AND EXCHANGE COMMISSION, Plaintiff, Securities Investor Protection Corporation, Applicant-Appellee, v. F. O. BAROFF COMPANY, INC., Defendant-Appellee. Claim of Samuel LUBIN, Claimant-Appellant. No. 720, Docket 73-2665. United States Court of Appeals, Second Circuit. Argued March 11, 1974. Decided May 29, 1974. Albert N. Proujansky, New York City (Jeffrey S. Tullman and Kane, Kessler, Proujansky, Preiss & Permutt, P. C., New York City, of counsel), for claimant-appellant. James B. Kobak, Jr., New York City (James W. Giddens and Hughes, Hubbard & Reed, New York City, of counsel), for defendant-appellee Trustee of F. O. Baroff Co., Inc. t Theodore H. Focht, Gen. Counsel, Securities Investor Protection Corp., Washington, D. C. (Wilfred R. Caron, Associate Gen. Counsel, and Michael E. Don, Atty., Securities Investor Protection Corp., Washington, D. C., of counsel), for appellee Securities Investor Protection Corp. Before MANSFIELD and TIMBERS, Circuit Judges, and DAVIS, Judge. Of the United States Court of Claims, sitting by designation. DAVIS, Judge: We are called upon to decide a relatively narrow point, but one of some significance, under the Securities Investor Protection Act of 1970, 15 U.S.C. § 78aaa et seq. The object of that statute, and the function of the Securities Investor Protection Corporation (SIPC) it created, is to protect the public customers of securities dealers from suffering the consequences of financial instability in the brokerage industry. Securities and Exchange Commission v. Alan F. Hughes, Inc., 461 F.2d 974, 977 (2d Cir. 1972); Securities Investor Protection Corporation v. Charisma Sec’s Corp., 352 F.Supp. 302, 306 (SDNY 1972). Once a broker or dealer is found to be on the brink of collapse or in danger of failing to meet its obligations to its customers, a trustee is appointed for liquidation of the business. The firm’s clients are cushioned (within limits) from personal loss through a special fund collected by SIPC from all securities dealers registered under the 1934 Securities Exchange Act (much in the way that the Federal Deposit Insurance Corporation protects the depositors of banks). But the Securities Investor Protection Act allows only those who meet its definition of a “customer” to share in this assurance. The question posed in this case is whether a voluntary lender of securities to a failing brokerage house, who made his loan to help out the company and not for a purpose related to securities trading or investments, qualifies under the Act’s scheme. The case comes before us on facts assumed to be true by the parties, the Bankruptcy Judge, and the District Court. On November 30, 1971, appellant Lubin delivered 7,000 shares of the common stock of Electronic Transistor Corp. to F.O. Baroff Co., Inc., a broker-dealer. Baroff opened an account in Lu-bin’s name and issued him a stock record receipt memorializing the delivery. Lubin also gave the broker a hypothecation letter, saying: This is .your authority to use the 6,000 [sic] shs. of Electronic Transistors Corp. in my account as collateral for F.O. Baroff Company, Inc. loans. You understand that I may revoke this authority at any time and you will agree to deliver such securities to me, free of all loans and encumbranches, except monies which may be due to F.O. Baroff Company, Inc. upon such notice. The record is barren of positive proof as to Lubin’s motive, but in a subsequent letter to the trustee of Baroff from Lubin’s attorneys, this explanation is made: “Mr. Lubin had theretofore done a considerable amount of business with the F.O. Baroff Co., Inc. firm. He was aware that Baroff was in a cash bind and that this loan of securities was intended to help Baroff alleviate that condition. It was understood that the securities would be returned in a short period of time as soon as Baroff as [sic] able to straighten out its situation.” It is not contended that this loan of securities was made in connection with any existing or anticipated securities transactions undertaken by Lubin or on his behalf. Nor is there any suggestion of a benefit or consideration passing to him from the company. Apparently he did not have a live account with the firm at the time he made the loan. About five weeks after this transaction, Baroff consented to an adjudication that its customers were in need of the protection of the Securities Investor Protection Act, and its liquidation commenced under a trustee’s supervision. Lubin made claim under the Act with respect to the 7,000 loaned shares, but the trustee resisted on the ground that as to those securities Lubin was not a “customer” entitled to protection. The Bankruptcy Judge agreed with the trustee’s conclusion, both initially and on rehearing. Lubin sought review by the District Court but lost , there as well. Appellant’s contention is simply that he falls within the literal definition of a “customer” in the 1970 statute, and is therefore entitled to its protections. The term “customer” is spelled out at section 6(c) (2) (A) (ii) of the Act, 15 U.S.C. § 78fff(c) (2) (A) (ii): (ii) “customers” of a debtor means persons (including persons with whom the debtor deals as principal or agent) who have claims on account of securities received, acquired, or held by the debtor from or for the account of such persons (I) for safekeeping, or (II) with a view to sale, or (III) to cover consummated sales, or (IV) pursuant to purchases, or (V) as collateral security, or (VI) by way of loans of securities by such persons to the debtor, and shall include persons who have claims against the debtor arising out of sales or conversions of such securities, and shall include any person who has deposited cash with the debtor for the purpose of purchasing securities, but shall not include any person to the extent that such person has a claim for property which by contract, agreement, or understanding, or by operation of law, is part of the capital of the debtor or is subordinated to the claims of creditors of the debtor. Lubin relies on subpart VI of this definition, “by way of loans of securities * * * to the debtor.” In the literal sense, that is what happened here; Lu-bin made a loan to Baroff of his Electronic Transistor stock. The problem is whether that fact is sufficient and dis-positive. Judge Learned Hand has vividly admonished us not to be caught in the trap of language which seems, literally, too broad or too narrow to accommodate the patent legislative purposes. Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion), aff’d sub nom Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945) ; Cabell v. Markham, 148 F.2d 737, 739-740 (2d Cir. 1945), aff’d, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). Securities legislation is no exception. See, e. g. Diskin v. Lomasney & Co., 452 F.2d 871, 874 (2d Cir. 1971). This court has already heeded the caution in reading another provision of the Securities Investor Protection Act (SEC v. Alan F. Hughes, Inc., supra, 461 F.2d at 980), and the present case supplies one more apt occasion. The legislative history is clear that the 1970 Act was not designed to protect a lender in appellant’s class. Most of the definition of “customers”, including subpart VI, was taken from section 60e(1) of the Bankruptcy Act, 11 U.S.C. § 96(e)(1), added in 1938, which established special rules “[w]here the bankrupt is a stockbroker.” Both the legislative history of that provision and its use since enactment have stressed protection to, and equality of treatment of, the public customer who has entrusted securities to a broker for some purpose connected with participation in the securities markets. See Comment, The Bankrupt Stockbroker: Section 60e of the Chandler Act, 39 Col.L.Rev. 485 (1939); Tepper v. Chichester, 285 F.2d 309, 311 (9th Cir. 1960). The 1970 Act carries through the same theme. The House Report states: “The primary purpose of the reported bill is to provide protection for investors if the broker-dealer with whom they are doing business encounters financial troubles.” H.Rep.No. 91-1613, 91st Cong., 2d Sess. (1970), 3 U.S. Code Congressional and Administrative News, 91st Cong., 2d Sess., p. 5255 (1970) (emphasis added). Throughout the report “investors” is used synonymously with “customers,” indicating that, in the eyes of Congress, the Act would protect capital markets by instilling confidence in securities traders. Earlier, at the hearings, Chairman Budge of the Securities and Exchange Commission pointed out that “this is not to be a bailout operation; it is to protect the public customers of the firms * * * ” (Hearings on H.R. 13308 [et al.] Before the Subcomm. on Commerce and Finance of the House Comm, on Interstate and Foreign Commerce, 91st Cong., 2d Sess. 369 (1970)). Speaking of possible losses of securities by customers, Philip A. Loom-is, then SEC General Counsel, now a Commissioner, gave examples showing that it was the trading customer who was to be protected. Similarly, a proponent of the measure on the House floor spoke of securities losses by customers of broker-dealers, obviously in the sense of trading customers. 116 Cong.Rec. 39343, 39344 (1970) (Cong. Latta). This Congressional objective is underscored by contemporaneous events in the securities industry. The late 1960’s saw the collapse of several brokerage establishments, causing serious financial losses to their clients. Self-help efforts in the industry — such as the New York Stock Exchange Trust Fund — were either severely strained or ineffective. There was considerable concern that investors, particularly smaller ones would lose confidence in the stability of broker-dealers, and withdraw from the securities market. The President’s message endorsing the concept of insurance protection for investors in securities said that such a device “will assure the investor that the stability of the securities industry itself does not become cause for concern” (House Hearings, supra, at 345). The emphasis throughout was on the customer as investor and trader, not on others who might become creditors of the broker-dealer for independent reasons. This is borne out by the last portion of the definition, excluding a person whose claimed property “by contract, agreement, or understanding, or by operation of law, is part of the capital of the debtor * * There is a dispute whether this exception applies to this case; appellees say that it does while the appellant urges that the securities never became part of Baroff’s “capital”. We need not decide that question, but we note that this exclusion, even if technically inapplicable in this instance, throws light on the preceding segments of the definition. To use Chairman’s Budge’s words, supra, Congress was intent on protecting “the public customers of the firms” and in avoiding “a bailout operation” for others, including those who contributed to the capital of the broker-dealer. There is no reason to think that non-investing, non-trading creditors — or gratuitous lenders acting through pure benevolence, family relationship, or friendship — were to be better off under the Act than capital-contributors. Appellant's loan of the 7,000 Electronic Transistor shares to Baroff does not meet this criterion of intent to use the lent securities (or their proceeds if hypothecated) in some type of securities trading or investment activity. On the facts before us, the loan had nothing at all to do with conventional investment, trading or participation in the securities market. There was no actual or likely use of the shares as collateral for margin purchases by Lubin of other securities; nor were the proceeds of the American Bank and Trust loan used to facilitate securities trading by Lubin. On the contrary, his professed intention was to help Baroff out of a (hopefully temporary) cash bind. Thus, there was no reasonable expectation that the shares would be sold for Lubin’s account in the near future, and indeed, their immediate delivery to the American Bank and Trust Company as collateral for a pre-existing loan to Baroff put a formidable barrier in the way of any such sale or disposition. Consistently with Lubin’s intention, the proceeds of the American Bank and Trust loan were used, as the Bankruptcy Judge found, by Baroff without restriction in its day-today business. These are not the indicia of the fiduciary relationship between a broker and his public customer, but rather the characteristics of, at most, an ordinary debtor-creditor relationship. Because appellant’s loan to the broker-debtor had no connection with his trading activity in the securities market, he cannot qualify by virtue thereof as a “customer” entitled to the benefits of the Securities Investor Protection Act. He is instead in the situation of a commercial bank, trade creditor, landlord, equipment lessor, or any other party who relies on the ability of a business enterprise to repay a business loan. If Lubin had chosen to support Baroff through a direct loan of cash, rather than taking the circuitous route of lending securities with permission to hypothecate so as to enable the broker to obtain cash, he would obviously be outside of the Act’s definition of “customers” which covers cash deposits only if they are “for the purpose of purchasing securities.” We can think of no reason why the Congress which passed the statute would desire to protect this loan of securities by appellant but not a straightforward cash loan made by him with the very same goal. Accordingly, appellant is not entitled to the privileges of a “customer” under the Securities Investor Protection Act of 1970; the Bankruptcy Judge and the District Court were correct in so holding. Affirmed. . The trustee-appellee has reserved the right to question the accuracy of these facts if the occasion should arise. . The Act contemplates that a person may be a “customer” with respect to some of his claims for cash or shares, but not with respect to others. This is made explicit in the definition of “cash customer”, but it is also implicit in the general pattern of the legislation and fits with the use of the plural in the definition of “customers” as “ * * * persons * * * who have claims on account of securities received, acquired, or held by the debtor [etc.] * * 15 U.S.C. § 78fff (c) (2) (A) (ii). . . Counsel for SIPC argues that the District Court, and consequently this court, lack jurisdiction to review the Bankruptcy Judge’s order. It is undisputed that Lubin did not file for review within the ten-day time limit after the first adverse (and final) decision of the Bankruptcy Judge. Lubin did ask review in timely fashion after the order upon rehearing, and it is settled that a valid reconsideration by a bankruptcy referee reopens the appeal time limit. See In re Pottasch Bros., Co., 79 F.2d 613, 616 (2d Cir. 1935). SIPC attacks the rehearing as a sham designed to provide a vehicle for review, but the transcript of the hearing on reargument before the Bankruptcy Judge shows that Lubin’s attorney raised a new matter (although it was unpersuasive to the Bankruptcy Judge). The Bankruptcy Judge, in ruling on the motion, expressly adverted to this matter and specifically reconsidered his prior decision in the light of it. The presentation and evaluation of this new point satisfies the minimum requirements for a bona fide rehearing, and thus provides an independent reviewable order. . The House bill was passed in lieu of the Senate version. . “You asked how can a customer lose, as I understand it. As I understand it, he can lose in any one of three ways. * * * “Similarly, many customers leave their securities with broker-dealers in order that they may sell them readily and quickly, without having to come around with a certificate. Those securities, if they are fully paid for, are supposed to be there and be segregated. But there is a possibility, if the broker gets into trouble, that they may not be. “Then there are customers who buy securities on margin. Their securities are necessarily left with the broker-dealer and used as collateral for the margin loan. But there may be a possibility that the customers’ equity is not properly protected, that the broker-dealer borrows too much or something of that kind, or even improperly diverts the securities.” Hearings on H.R. 13308 [et al.] Before the Subcomm. on Commerce and Finance of the House Comm, on Interstate and Foreign Commerce, 91st Cong., 2d Sess. 228 (1970). . Appellant also raises the contention that he qualified as a “cash customer” under section 6(c) (2) (A) (iii) of the Act. But this term is a further refinement of the “customer” concept as defined by the Act, and our disposition of the main point disposes of this subsidiary argument as well. One cannot be a “cash customer” unless he is a “customer”. 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_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party BRATCHER v. UNITED STATES. No. 5344. Circuit Court of Appeals, Fourth Circuit. May 9, 1945. Writ of Certiorari Denied June 18,1945. See 65 S.Ct. 1580. Milton Kramer, of Washington, D. C. (Joseph A. Fanelli, of Washington, D. C., on the brief), for appellant. George R. Humrickhouse, Asst. U. S. Atty., of Richmond, Va. (Harry H. Holt, Jr., U. S. Atty., of Norfolk, Va., and Fred E. Strine, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee. Before PARKER, SOPER, and NORTHCOTT, Circuit Judges. NORTHCOTT, Circuit Judge. This is an appeal from a judgment of conviction and sentence in the District Court of the United States for the Eastern District of Virginia, at Alexandria, under which appellant was sentenced to imprisonment for a term of four years and fined in the sum of $1,000 for violation of Section 11 of the Selective Training and Service Act, 50 U.S.C.A.Appendix § 311, in evading service in the armed forces by presenting himself for induction pursuant to an order issued by his draft board in Washington, D. C., while in an abnormal physical condition resulting from the use of benzedrine which he had allegedly theretofore taken for the purpose of rendering his physical condition abnormal. The indictment against the appellant, herein referred to as the defendant, was in three counts. The trial judge directed a verdict of not guilty on count one and the jury found the defendant not guilty on count three, but guilty on count two. We are only concerned on this appeal with count two which charged that on or about November 23, 1943, at Fort Myer, Arlington County, Virginia, the defendant, a registrant within the meaning of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 1 et seq., and regulations thereunder, did knowingly, wilfully, unlawfully and feloniously evade service in the land and naval forces of the United States, in that he presented himself to the armed forces induction station and to the medical examiners thereof for induction, pursuant to an order of Local Board No. 1 of Washington, D. C., while in an abnormal physical condition resulting from the use of a drug popularly known as benzedrine, which drug theretofore had been taken by the defendant for the purpose of rendering his physical condition abnormal and thus causing his rejection for service. Prior to trial defendant moved to suppress the evidence obtained as a result of the physical examination which was given him on November 23, 1943, at the induction station at Fort Myer, on the ground that such examination was conducted for the purpose of obtaining evidence to be used against him and hence constituted an illegal search and seizure in violation of the Fourth Amendment to the Constitution, with the further result that the use of the evidence thereby obtained was compulsory self-incfimination in violation of the Fifth Amendment. After a hearing at which evidence was taken on the motion, the court denied it on the ground that defendant had totally failed to carry the burden resting on him to show that the object of the examination was to secure evidence to be used against him in a criminal prosecution. A trial was had in November, 1944, at Alexandria. After, the verdict, the defendant moved for a new trial which motion was denied and after sentence the defendant brought this appeal. The defendant, about thirty years of age, was the organizer, manager, and conductor of a dance orchestra in Washington, D. C., and registered for the draft on October 16, 1940, in Washington, D. C., where he then and continuously thereafter resided and worked. On December 2, 1941, he was classified 1-B (for limited military service) on account of defective eyesight. On February 6, 1943, he was ordered to report or. February 18, 1943, for induction, but that order was rescinded by his draft board. On Márch 16, 1943, he was classified III-A because of his ailing mother’s dependency upon him for her support. On August 16, 1943, he was ordered to report for induction on August 28th, but was rejected and on September 15, 1943, was placed in IV-F (physically unfit for military service). Two months later, on November 12, 1943, he was again ordered to report for induction on November 23rd. Upon reporting on November 23, 1943, defendant was sent to the Fort Myer induction station where his blood pressure was found to be 164/102, and he was sent to the Fort Myer Station Hospital for twenty-four hours for observation. During the observation period it developed from an analysis of his urine that the defendant had been taking a drug called benzedrine. This is a drug that has the effect of increasing blood pressure and is taken as a stimulant by persons who desire to keep awake. The Government contends that the defendant admitted having taken tablets the night preceding his examination on August 28, 1943, and during the night on November 22, 1943, and the early morning of November 23, 1943, he took two or three tablets and after reporting for induction that morning he again took two more tablets at the Fort Myer Station Hospital. Several witnesses testified that the defendant admitted that he had taken the drug for the purpose of increasing his blood pressure and insuring his rejection by the examining board. There was medical evidence tending to show that the effect of the drug was to increase blood pressure. A number of points are raised by the defendant which are urged as reversible error: 1. Whether the Court erred in permitting a juror, one C. J. Ford, to sit as a member of the jury. This juror upon being questioned on his voir dire, stated that he had not formed or expressed an opinion as to the guilt of innocence of the defendant and that he knew of no reason why he could not hear the testimony and return a true verdict according to the law and the evidence. In response to a question by defendant’s counsel as to whether he could judge the case as fairly as if he did not have two sons in the service, the reply was “No, I guess not”. Counsel asked no further questions and made no objection when the court accepted Ford as a juror. 2. Whether the trial court erred in overruling defendant’s motion to suppress certain evidence obtained at his examination m the hospital, in November. 3. Whether the trial court had jurisdiction. 4. Whether the corpus delicti was proven other than through alleged admissions of the defendant. 5. Whether the trial court erred in not granting defendant’s motion to strike the testimony of witness Chambers who testified as to the urinalysis. 6. Whether the trial court erred in admitting in evidence, over defendant’s objection and exception, Government Exhibit 3, an empty bottle alleged to have contained a specimen of urine. 7. Whether the court erred in sustaining the Government’s objection to defendant’s efforts to show that his examination in November, 1943, was not given him for the purpose of inducting him but only for the purpose of obtaining evidence. 8. Whether error was committed in permitting cross-examination of certain character witnesses. 9. Whether it was prejudicial to the defendant to permit the case to go to the jury on the third count. 10. Whether it was error to overrule defendant’s motion for a directed verdict of acquittal on the second count. 11. Whether there was error in the charge of the court to the jury. 12. • Whether it was error to adjourn the jury the night of November 28, during the taking of the evidence. 13. Whether there was error committed by the prosecuting officer in his argument to the jury. 14. Whether there was error in not granting a new trial because the foreman of the jury brought into the jury room, during the jury’s deliberations, a newspaper containing a discussion of the case. We will consider each of these points in the order in which they are enumerated. The examination of the juror, Ford, upon his voir dire, as set out above, seems to have been full and fair. When juror Ford was accepted by the court defense counsel did not accept and did not strike the juror. The trial judge is vested with a wide discretion in determining the competency of jurors and his judgment will not be interfered with except in the case of an abuse of discretion. Lias v. United States, 4 Cir., 51 F.2d 215, affirmed per curiam 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; see also Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann. Cas. 1138; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Assaid v. United States, 4 Cir., 10 F.2d 752. We are of the opinion that the action of the court in accepting Ford as a juror was correct and did not prejudice the rights of the defendant. The trial judge took evidence on the motion to suppress the evidence obtained while the defendant was in the hospital. A number of witnesses were heard and the trial judge in an able written opinion overruled the motion on the ground that the defendant had “totally failed to carry the burden resting on him”. The determination of this question by the trial judge was the determination of a question of fact and was sustained by substantial direct evidence offered on behalf of the Government. Had the examination of the defendant shown that he was physically fit for induction into the limited services he would have been inducted at once and there was no evidence offered to show that the authorities intended anything other than to comply with the regulations and induct the defendant if he was found acceptable. We do not think that defendant’s physical examination could possibly be considered an unlawful search and seizure. The evidence was obtained under the Selective Training and Service Act and the regulations issued thereunder. We are therefore of the opinion that there was no violation of the Fifth Amendment in admitting this evidence. We are of the opinion that the action of the court below in refusing the motion to suppress the evidence was correct and that no constitutional rights of the defendant were violated by the admission of the evidence. The evidence shows conclusively that the induction station at Fort Myer is in the State of Virginia and the District Court for the Eastern District of Virginia clearly had jurisdiction of the case because it was there that the offense, charged in the second count of the indictment, was committed. Points four, five, six, seven, eight, nine and ten may all be considered together. An examination of the record shows that there was sufficient evidence, which if believed by the jury, would support the verdict. All the elements of the offense were properly proven. It was shown that defendant presented himself for induction in an abnormal physical condition; that such condition resulted from his taking of the drug benzedrine; that the drug was taken by him purposely to produce that abnormal condition and his consequent rejection. The testimony of witness Chambers was competent and there was no error in the refusal of the trial court to strike the evidence. The admission over defendant’s objection and exception of an empty bottle was not of any consequence but in any event the exhibit was properly admitted and the admission of the reports of the examination of the defendant in 1941 and a written statement containing admission of defendant and a map were proper. The trial court was right in permitting the cross-examination of defendant’s character witnesses. In view of the verdict of the jury on the third count it is not necessary to consider the point raised that it was error to overrule the defendant’s motion for a directed verdict on that count. The evidence of the Government, if believed by the jury, was amply sufficient to prove that the defendant’s blood pressure was abnormal for him. There was no error in the charge of the trial judge to the jury and no objection was made to it. At the time the court permitted the separation of the jury defendant and one of his counsel were present and acquiesced in the separation. It is settled that a jury may be allowed to separate during their deliberations Lucas v. United States, 8 Cir., 275 F. 405 certiorari denied 258 U.S. 620, 42 S.Ct. 272, 66 L.Ed. 795; Brown v. United States, 69 App.D.C. 96, 99 F.2d 131. Objection was made to some remarks by the prosecutor in his argument to the jury. It is well settled that the remarks of a prosecutor do not constitute a basis for reversal unless they result in prejudice to the accused. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. It is only in the most exceptional cases that a defendant can remain silent and interpose no objection and after verdict has been returned object that the prosecutor made improper remarks to the jury. United States v. Socony-Vacuum Oil Co., supra; Crumpton v. United States, 128 U. S. 361, 11 S.Ct. 355, 34 L.Ed. 958; Dale v. United States, 7 Cir., 66 F.2d 666. The only remark of the prosecutor, in his argument, to which the defendant’s counsel objected, at the time, was the statement that defendant’s counsel had cast reflections. upon the integrity of the jury. This statement of the prosecutor was made in an effort to answer statements made by defendant’s counsel in his argument and under the ruling of the court that the question raised was one for the jury to determine there was no resulting prejudice to the defendant. The authorities relied upon by defendant’s counsel are easily distinguishable and are not controlling here. The mere fact that jurors have read newspaper accounts of the trial in which they are participants is not ground for a new trial. United States v. Reid, 12 How. 361, 53 U.S. 361, 13 L.Ed. 1023; Van Riper v. United States, 2 Cir., 13 F.2d 961, certiorari denied Ackerson v. United States, 273 U.S. 702, 47 S.Ct. 162, 71 L.Ed. 848; Tinkoff v. United States, 7 Cir., 86 F.2d 868, certiorari denied 301 U.S. 689, 57 S.Ct. 795, 81 L.Ed. 1346. Even where the jury saw and discussed a newspaper headline to the effect that gamblers were betting ten to one that there would be an acquittal, the action of the trial court in denying a motion for a new trial was sustained. Beard v. United States, 65 App.D.C. 231, 82 F.2d 837, certiorari denied 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382. There was no error in the refusal of the trial court to grant the motion for a new trial. A motion for a new trial is addressed to the discretion of the trial court, and the refusal to grant such a motion is not reviewable unless there is a manifest abuse of discretion. Holt v. United States, supra; Luke v. United States, 5 Cir., 84 F.2d 711, certiorari denied 299 U.S. 542, 57 S.Ct. 45, 81 L.Ed. 399; Sutton v. United States, 9 Cir., 79 F.2d 863. The defendant had a fair and impartial trial; the question of his guilt or innocence was one for the jury; there was no harmful error in the trial of the case and the question of the severity of the sentence cannot be passed upon by us. The judgment of the court below is accordingly affirmed. Affirmed. Note: New York Central R. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Read v. United States, 8 Cir., 42 F.2d 636; Ippolito v. United States, 6 Cir., 108 F.2d 668; Lau Lee v. United States, 9 Cir., 67 F.2d 156; Hall v. United States, 4 Cir., 256 F. 748; Paquin v. United States, 8 Cir., 251 F. 579; Sparks v. United States, 6 Cir., 241 F. 777. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_usc1	11	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. In re CHICAGO, M., ST. P. & P. R. CO. CHICAGO, T. H. & S. E. RY. CO. FIRST LIEN BONDHOLDERS’ COMMITTEE v. CHICAGO, M., ST. P. & P. R. CO. No. 9275. Circuit Court of Appeals, Seventh Circuit. Nov. 6, 1947. Reese D. Alsop, of New York City, and Joseph E. Nolan, of Chicago, 111. (Hunt, Hill & Betts, of New York City, and Bell, Boyd & Marshall, of Chicago, 111., of counsel), for appellant. Kenneth F. Burgess, of Chicago, 111., Fred N. Oliver, of New York City, A. N. Whitlock, M. L. Bluhm, Douglas F. Smith, Ray Garrett, and George Ragland, Jr., all of Chicago, 111., and Willard P. Scott, of New York City (Sidley, Austin, Burgess & Harper, of Chicago, 111., and Oliver & Donnally, of New York City, of counsel), for appellees. Before MAJOR and KERNER, Circuix Judges, and LINDLEY, District Judge. MAJOR, Circuit Judge. This appeal is from an order of the District Court, entered November 5, 1946, denying allowance for compensation to the members of the Chicago, Terre Haute and Southeastern Railway Company First Lien Bondholders’ Committee (hereinafter called the committee), for services alleged to have been rendered in connection with the reorganization proceedings of Chicago, Milvvaukee, St. Paul and Pacific Railroad Company (hereinafter called Milwaukee). On November 26, 1945, the court entered an order fixing the time within which claims were to be filed for expenses incurred and services rendered in connection with the reorganization proceedings. Pursuant to this order, the appellant committee, consisting of Charles B. Roberts, John E. Blunt, Lemuel H. McHenry and Roger H. Williams, filed its claim for services rendered, the denial of which forms the basis of the present controversy. So far as here pertinent, the petition prayed “for an allowance to the Committee of $20,000 as compensation to it and its members for division among them as they may agree and as may be in their opinion proportionate to the time and labor spent by each in connection herewith and in proportion to the accomplishments of each in aid of the bondholders represented by them and in aid of the consummation of the Plan herein * . ” The petition also sought compensation for attorneys who represented the committee and other expenses incurred by the committee and its attorneys, which were allowed and are not involved in this appeal. The committee’s petition for allowance and other similar petitions for compensation in respect to services rendered and expenses incurred from September 1, 1943 to the conclusion of the reorganization proceeding was transmitted to the Interstate Commerce Commission for the fixing of maximum limits, pursuant to Sec. 77, sub. c(12) of the Bankruptcy Act, 11 U.S.C.A. § 205, sub. c(12). The Commission concluded that Section 77, sub. c(12) did not permit the allowance of the committee’s claim, and refused to fix a maximum limit therefor. The court below in the order appealed from approved the report and order of the Commission to the effect that no allowance should be made from the debt- or’s estate for compensation to the committee members. We think it not important to enter any detailed discussion of the relation existing between the debtor corporation and the Chicago, Terre Haute and Southeastern Railway Company (referred to as Terre Haute), whose bonds were represented by the committee. The position occupied by Terre Haute with reference to the Milwaukee and the provision made in the reorganization proceeding for Terre Haute and its bondholders is described in Group of Institutional Investors et al. v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co., 318 U.S. 523, on page 546 et seq., 63 S.Ct. 727, 87 L.Ed. 959. It appears therefrom, as well as from the record before us, that the committee contested''the plan of reorganization as it pertained to Terre Haute and received an adverse decision at the hands of the Supreme Court. It is sufficient here to note that Terre Haute .was not a property of Milwaukee but their relations stem from a long-term lease in which Terre Haute was the lessor and Milwaukee the lessee, and that the plan of reorganization required that “substantially all” of the bondholders of Terre Haute agree to the plan as a condition of its becoming effective as to it. The committee, having failed to sustain its position in the Supreme Court; was confronted with the difficult problem of deciding a course to pursue in the interest of those whom it represented. The record discloses that a number of plans were discussed and considered and that it was finally determined by the committee that it was for the best interest of the Terre Haute bondholders to approve the plan as it pertained to Terre Haute and thereby assist in its confirmation. It was for services rendered by the committee in obtaming the approval of such bondholders that it sought the allowance in question. The committee devotes much effort in showing that it was generally responsible for procuring the approval of the bondholders represented by it, as well as the importance and benefit which inured to the reorganized company by reason of such approval. We think there is no point in detailing either the efforts of the committee in this respect or the benefits which the reorganized company derived therefrom. This is so for the reason that such matters are not in dispute. In fact, it appears to be conceded on all sides that the services rendered by the committee were valuable and that the result obtained was of benefit to the reorganized company. While it may be a matter of some conjecture, it is not unreasonable to conclude that without such services the approval of the necessary bondholders could not have been obtained. Neither is there any question as to the-reasonableness of the committee’s claim. Numerous issues are raised and discussed, but we think they are all encompassed within the primary issue as to whether Sec. 77, sub. c(12) is controlling; and, if so, was the power of the court as to the committee’s claim limited thereby? Sec. 77, sub. c(12) provides: “Within such maximum limits ■ as are fixed by the Commission, the judge may make an allowance, to be paid out of the debtor’s estate, for the actual and reason-aide expenses (including reasonable attorney’s fees) incurred in connection with the proceedings and plan by parties in interest and by reorganization managers and committees or other representatives of creditors and stockholders, and within such limits may make an allowance to be paid out of the debtor’s estate for the actual and reasonable expenses incurred in connection with the proceedings and plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.” A study of this provision makes it plain, so we think, .that Congress placed a limitation not only upon those who could receive compensation but a further limitation that their allowance must be within a maximum' amount fixed by the Commission. Also as to those, the right to receive compensation was limited to services rendered “in connection with the proceedings arid plan.” As to other parties and groups, including “committees,” their right to an allowance was limited to a reimbursement for the actual and reasonable expenses incurred “in connection with the proceedings and plan.” It hardly seems reasonable to think that Congress authorized compensation for attorneys and trustees and inadvertently failed to make similar provision for a committee. That Congress had committees specifically in mind is evidenced from the. fact that provision was made for an allowance for their expenses. The fact that no provision was made for their compensation is a persuasive indication that Congress intended that they should have none. After all, a committee usually represents a group of bondholders or other creditors, and its primary responsibility is to those whom it represents. Reconstruction Finance Corporation v. Bankers Trust Co., 318 U.S. 163, 63 S.Ct 515, 87 L.Ed. 680, while not decisive of the question before us, is authority for the proposition that any compensation allowable in a proceeding of the instant nature must be for services rendered in connection “with the proceedings and plan,” and we think this case also supports the view that Congress has by this subsection imposed a limitation upon those who may be allowed compensation for such services. The committee, upon a factual situation subsequently related, argues that subsection c(12) is not applicable for the reason that the services performed by the committee were rendered to the court and not before the Commission. No case is cited and we are aware of none which makes such a distinction. • The test which Congress has prescribed is that the services be rendered “in connection with the proceedings and plan,” and not that they be rendered before the Commission. That the committee’s services were rendered “in connection with the proceedings and plan” is not open to dispute. Moreover, the committee is in a poor position to argue that subsection c(12) is not controlling because its petition for allowance was predicated upon this provision and the court, without objection on the part of the committee, referred its petition to the Commission, as is required where allowances are sought under this subsection. After having thus proceeded, and after the Commission refused to fix a máximum limit, the committee now attempts to maintain the position that subsection c(12) is not applicable, that such reference was unnecessary, and that the court independently of any action by -the Commission was authorized to make the allowance. in thus construing subsection c(12) we have not overlooked the committee’s contention that a court in a proceeding under Sec. 77 is in the position of a federal court appointing a receiver in equity and thus has the power to make an allowance to the committee irrespective of subsection c(12). It is true that subsection a authorizes the court to exercise certain powers in addition to those conferred by the section, provided they are “not inconsistent with this section.” As we construe it, subsection c(12) is inconsistent with the power of the court to allow compensation for services rendered “in connection with the proceedings and plan,” except as therein provided. If the committee’s contention in this respect be accepted, it would seriously impair, in fact well near emasculate, the salutary provisions of subsection c(l2). If the court has the power which the committee asserts, we see no reason why it could not allow compensation not only to committees but to any others who might aid in the proceedings. We shall not cite or discuss the numerous cases cited by the committee in support of its contention in this respect. None of them, with the exception of In re Chicago & North Western Ry. Co., 7 Cir., 121 F.2d 791, had anything to do with a proceeding under Sec. 77. In the North Western case this court held that the court had the power, without reference to the 'Commission, to allow and make payable out of the estate the expenses to foe incurred by a debtor in perfecting an appeal to this court. Our holding was predicated largely on the theory that subsection c(12) covered services which had been rendered, while the amount sought was for a service or expense to be incurred in the future. A further basis for our conclusion might well have been that the allowance sought was not for services rendered “in connection with the proceedings and plan,” and therefore was not within the terms of subsection c(12). At any rate, neither this case nor any of the others relied upon by the committee furnishes any support to the argument here presented. Another contention advanced by the committee is that its services were rendered under the express authority of the court and at the request of the reorganization managers, and that even though subsection c(12) be held applicable the claim for compensation should be allowed as expenses incurred by the reorganization managers. As already noted, the committee, after the adverse decision of the Supreme Court, decided that it was in the interest of the bondholders to approve the plan. On February 20, 1945, at the time the reorganization proceeding came before the court for confirmation, counsel for the committee, acting on instructions therefrom, appeared before the court and advised it of the decision of the committee to go along with the plan. Counsel suggested that there might be some difficulty in obtaining the necessary approval but that the committee (one member refusing to agree) was willing to assist and requested the court to approve of the committee-sending a letter to the bondholders suggesting that they approve of the plan. In the meantime, the reorganization managers had sent out ballots to the Terre Haute bondholders, under the approval of the court, in order to obtain the vote of such bondholders as to whether they approved the provisions of the plan as it related to them. Without going into detail, it is sufficient to state that the reorganization managers met with little success. Sometime in June-1945, counsel for the reorganization managers called the chairman of the committee by telephone, informed him in effect of the disappointing result being obtained from the bondholders, reminded him of the statement made foy- the committee’s counsel in court that the committee would be willing to help, and inquired if the committee was still willing. Coúnscl for the managers was informed that the committee would do its best to bring.about the necessary approval. Thereupon, the committee on June 7, 1945 filed a petition in the court evidencing its willingness to assist in procuring a favorable vote, recited that- favorable action by the bondholders would redound not only to their advantage but also to the advantage of the debtor, and prayed that “an order authorizing it to retain persons to solicit the favorable vote of ‘the Terre Haute’ bondholders to the plan, and authorizing the debtor’s trustee to pay to your petitioner the reasonable expenses thereof, not exceeding $15,000, for that purpose.” The court on June 12, 1945 entered an order, predicated upon such petition, which among other things authorized the committee to retain persons to solicit the bondholders and directed the debtor’s trustee to pay the committee the cost of such solicitation. The order further recited: “ * * and it appearing to the Court that it is in the interests of the Trust Estate and ultimate reorganization that all of the holders of said ‘Terre Haute Bonds’ should vote in respect of the provisions of the Plan relative to the ‘Terre Haute Bonds’ and Lease, and that the holders of such bonds who have not yet voted in respect of said provisions should be solicited to vote in favor thereof, and that it is appropriate that said Committee should solicit the holders of said bonds to cast their votes; and it further appearing that the reasonable cost of such solicitation will be not less than $10,000 * * The court authorized the committee to retain suitable persons to solicit the bondholders, and in conclusion stated: “Further Ordered that upon proper showings made to the Trustees of the property of the Debtor herein, amounts not to exceed $10,000 for the cost of such solicitation shall be advanced to said Committee by said Trustees out of the funds of the Trust Estate pending final determination as to the total amount to be allowed for the cost of such solicitation.” The committee engaged the services of a professional solicitor whose claim for such services has been approved and paid. It is plain from the court’s order that the payment for this service was authorized by the court, but we are unable to find, as the committee would have us do, any authority in the order for compensation to the committee for the services rendered by it, valuable as they might have been, in obtaining the desired result. In the report of the Commission concerning this order, it is stated: “The court authorization referred to above specified that the committee might retain solicitors, and placed a limitation upon the sum which could be expended for such services. It contained no direction or authorization to committee members to undertake such services themselves.” We agree with the interpretation which the Commission places upon the court’s order. So we think there is no merit to the contention that the committee’s claim for compensation can properly be charged as an expense incurred by the reorganization managers. The committee was not acting as an agent or on behalf of such managers in performing the service for which compensation is sought. It is true, no doubt, that the managers were glad to have the assistance of the committee, which the latter proffered in open court. About the most which can be said of the relation existing between the committee and the managers is that the latter were glad to avail themselves of the committee’s offer. It also appears that this theory for obtaining compensation was an afterthought. If the committee was entitled to be paid by the reorganization managers as an expense incurred by them, we think the claim should have been presented directly to such managers, and in turn they would have sought its allowance from the court and the Commission as an expense incurred “in connection with the proceedings and plan.” The petition for allowance, however, and the course which has been pursued indicate that no such theory was relied upon. Moreover, the primary responsibility of the committee was to the bondholders whom it represented. That this responsibility was discharged in good faith is evidenced by the fact that the committee on their behalf contested the plan all the way to the Supreme Court. It was only after an adverse decision that it agreed to cooperate and then only, and rightfully so, after the committee had determined that the best interest of the bondholders called for approval of the plan. The benefit which inured to the reorganized company was that which flowed from the committee’s labors in behalf of its bondholders whom it was under obligation to serve. We agree with the Commission that it was without authority • to fix a maximum limit of compensation for the committee and we agree with the lower court that it, in the absence of such authority on the part of the Commission, was also without authority to make an allowance of compensation as prayed for by the committee. The order appealed from is affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_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). Michael J. TAIT and Monica Tait, his wife, Appellants, v. ARMOR ELEVATOR COMPANY, and Prudential Insurance Company of America, Appellees. No. 91-1378. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Oct. 10, 1991. Decided March 12, 1992. Rehearing and Rehearing In Banc Denied April 10, 1992. Stephen R. Bolden, Michael S. Lubline, Debra Schwaderer Dunne Fell & Spauld-ing, Philadelphia, Pa., for appellants. William J. Conroy, White and Williams, Philadelphia, Pa., for appellee, Armor Elevator Co. Ralph P. Bocchino, Christine M. Brenner, Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, Pa., for appellee, Prudential Ins. Co. Before MANSMANN, NYGAARD and SEITZ, Circuit Judges. OPINION OF THE COURT SEITZ, Circuit Judge. Monica and Michael Tait (plaintiffs), appeal a final judgment of the district court in favor of defendants, Armor Elevator Company (Armor) and Prudential Insurance Company of America (Prudential). The district court exercised diversity jurisdiction under 28 U.S.C. § 1332. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Plaintiffs brought this negligence action against Prudential and Armor for injuries allegedly suffered by plaintiff Michael Tait as a result of an abrupt stop of a descending elevator in which he was the sole passenger. Prudential owned the building where the accident occurred. Armor was under contract with Prudential to inspect, repair and maintain the building elevators. In June of 1988, it also contracted to modernize the elevators. At the close of plaintiffs’ case, the district court granted a directed verdict in favor of Prudential and entered a judgment accordingly. The trial continued against Armor and resulted in a jury verdict in its favor based on a finding of no negligence. After entry of judgment therein, the district court denied plaintiffs’ motion for a new trial. This appeal against both defendants followed. I. JURY VERDICT FOR DEFENDANT ARMOR The plaintiffs contend that the district court erred in denying their motion for a new trial against Armor. Plaintiffs first assert that the district court gave an erroneous jury instruction as to the standard of care that Armor owed to plaintiff Michael Tait. In their “Revised and Supplemental Points for Charge,” plaintiffs sought a “highest duty of care” instruction. Although the issue of its propriety was apparently argued, no subsequent ruling can be found in the appendix. Counsel was asked by us to comment on this apparent defect. Their responses, particularly Armor’s, leave us with the definite impression that the district court, in fact, rejected plaintiffs’ request at a sidebar conference during the trial. We conclude that there was a definitive ruling before the jury instructions were given. Therefore, we determine that the issue of instructional error was preserved. Bowley v. Stotler & Co., 751 F.2d 641, 646-47 (3d Cir.1985). As noted, plaintiffs first argue that the jury instruction was erroneous under controlling Pennsylvania law since it failed to correctly instruct the jury as to the duty of care owed by Armor to passengers under the present circumstances. The plaintiffs asked the district court to instruct the jury as follows: Armor owes to the plaintiffs Michael Tait a duty of care similar to that of a corn-mon carrier [and,] ... as such, is required by the law to use a higher degree of care for the safety of passengers who ride upon the elevators maintained, inspected and repaired by it, than that ordinarily imposed on others and it must be judged by a much stricter standard ... [namely,] the highest degree of diligence and care in the operation and maintenance of its elevators. Instead of honoring their request, the court instructed the jury to decide whether Armor breached its duty of care “under all the circumstances.” The instructions recited further: [W]hat constitutes ordinary care varies according to the particular circumstances and conditions and that amount of care required by law must be in keeping with the degree of dangers involved.... [I]n deciding whether ordinary care was exercised in a given case, the conduct in question must be viewed in light of all the surrounding circumstances that are shown by the evidence in the case. Plaintiffs alleged in their motion for a new trial that the district court’s refusal to instruct the jury that Armor owed plaintiff Michael the highest degree of care constituted error. On appeal, they say that since Armor assumed contractual duties to inspect, repair and maintain the elevators, it “must of necessity have assumed the same obligations to passengers as was owed to them by Prudential,” the highest degree of care. The district court denied the motion on the ground that the instructions given fairly reflected the duty of an elevator service company to passengers under Pennsylvania law. The court explained: In speaking about duty of care in Benson v. Penn Central Transportation Co. [463 Pa. 37], 342 A.2d 393 (Pa.1975), the Supreme Court of Pennsylvania said “it is true, of course, that our cases have placed upon common carriers a duty to use ‘the highest degree of care for (their passengers) safety.’ ” (citations omitted.) However, as Dean Prosser correctly states, “Although this language ... seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility is merely one of the circumstances, demanding only an increased amount of care.” I believe my instructions to the jury referred to previously were consistent with the law. Tait v. Armor Elevator Company and Prudential Life Insurance Company of America, No. 89-6313 (E.D.Pa.), slip. op. 4, 1991 WL 67737 (Buckwalter, J.) The district court’s instructions must be viewed as a whole and read in light of all the evidence. Under such a review, the ruling should be reversed only if it does not fairly and adequately submit the issue to the jury and, thereby, confuse or mislead the jury. Link v. Mercedes-Benz, 788 F.2d 918, 922 (3d Cir.1986). The Pennsylvania Supreme Court has stated that a common carrier “is negligent if a reasonable man under like circumstances would recognize that it involves an unreasonable risk of causing harm to another.” Benson, 342 A.2d at 397. The Benson court reasoned further that the fact that the cab company was a common carrier did not affect the applicability of this definition of the standard of care: It is true, of course, that our cases have placed upon common carriers a duty to use “the highest degree of care for [their passengers’] safety.” (citations omitted). However, as Dean Prosser correctly states, “although [this] language ... seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility is merely one of the circumstances demanding only an increased amount of care.” W. Prosser, The Law of Torts, § 34, at 181 (4th ed. 1971). Id. at 397 n. 11. Without discussing Benson, the plaintiffs argue that, under Pennsylvania law, an elevator service company owes the highest degree of care to its passengers when it acts as a common carrier. This argument is not supported by Pennsylvania precedent. Prior to Benson, former Chief Justice Jones in his concurrence in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 105 (1974), extrapolating from Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), stated “it is clear that the duty owed by a service contractor to third parties is uniformly one of ordinary care and does not vacillate to conform with the standard of care which the law has placed on the other party to the contract.” However, the majority in Gilbert did not determine the extent of the tort law duty of care owed by such a service company to elevator passengers. The Pennsylvania Supreme Court has not decided whether it will apply to an elevator service company the duty of care standard articulated in Benson for common carriers. Further, we recognize that there is a division of authority nationally on the issue of the standard of care owed to passengers by an elevator company arising from its contract to service and maintain an elevator. Prosser and Keaton on the Law of Torts, § 34 at 208-9 n. 5-14 (1984; Supp.1988). See also 64 A.L.R.3d 950, 962-64, 974 (1975). Nevertheless, the case law in Pennsylvania, particularly the quoted footnote in Benson, leads us to believe that the Supreme Court of Pennsylvania would adopt the same duty of care as to an elevator service contractor that it has applied to other common carriers. Thus, we find no error under Pennsylvania law in the instruction given as to Armor’s duty of care. The plaintiffs’ second allegation of trial error is based on the following statement by counsel for Armor in his closing argument to the jury: Let me try and put in perspective what I am driving at. We often pick up the newspaper and we read that a jury verdict has resulted and you start reading through it and you say to yourself, my God, how could they have done what they did with the evidence they had on the issue they had to decide? Because you read it, you say, I can’t believe it. Well, you can imagine picking up a newspaper and reading that a jury had awarded a person or had concluded that a person had a certain injury at one point in time, when his own doctors' agreed that the symptoms that would evidence that injury, all pre-existed the date when he said it occurred? Can you imagine that? Well, that’s what you’re being asked to do, if I may say so, to put it in perspective for you. App. at 843-44. Although plaintiffs did not object to these remarks at trial, they asserted in their motion for a new trial that these remarks constituted plain error. They argued that the remarks were improper because they suggested to the jury that the plaintiff Michael Tait was a malingerer and attempted to link his claim to other frivolous law suits reported in the newspapers. Even entertaining plaintiffs’ argument under the stringent standard of the plain error doctrine, we agree that the district court properly denied plaintiffs’ new trial motion. As it said, the remarks had no “reasonable probability of improperly prejudicing the jury and influencing its verdict.” Thus, the district court did not abuse its discretion in its ruling on this issue. Finally, plaintiffs seek a new trial against Armor on the ground that the district court improperly excluded certain “Elevator Logs” that recorded tenant complaints and which were kept on a regular basis by Prudential’s building manager. The purpose of these tenant logs was to record tenant complaints about elevator operation problems and Armor’s response time in dealing with them. These logs showed a pattern of unexplained malfunctions, other than abrupt stops, in elevator No. 7. They also showed evidence of abrupt stops in No. 7 both before and after the accident. Finally, the logs kept by Prudential revealed incidents in the same bank of mid-rise elevators during the year leading up to the accident in July of 1988. Plaintiffs sought to introduce these logs to establish three propositions: (1) that the defendants had notice or knowledge of the dangerous condition and its magnitude, (2) that defendants had an ability to correct a known danger, and (3) that the defendants knew of the likelihood of injury in connection with an accident. Prior to trial, both defendants filed motions in limine to exclude the tenant logs on the ground that the evidence of prior malfunctions in the same bank of elevators other than No. 7 and incidents in other elevators was not probative and should be excluded under Federal Rule of Evidence 402 (Only relevant evidence admissible). Alternatively, they contended that the evidence was too prejudicial and must be excluded under Rule 403 (when relevant evidence excluded). The defendants asserted that the plaintiffs should be limited to introducing evidence from the logs showing malfunctions prior to the incident involving plaintiff Michael on July 18, that resulted from abrupt stops in elevator No. 7. Plaintiffs argued that the evidence was relevant because poor maintenance of the interconnected safety circuits had caused accidents of a similar nature in both elevator No. 7 and the other elevators. They contended that these circuits would have caused malfunctions in all the elevators because they were exposed to the same environment of dust, dirt and corrosion common to all the mid-rise bank elevator shafts. The district court reserved ruling on this matter until the plaintiffs had presented other evidence. The plaintiffs presented expert testimony to show that the accident alleged by plaintiff Michael would only result from negligence and that dust, dirt or corrosion in the circuits may have caused the alleged abrupt stop in elevator No. 7. The reports of the plaintiffs’ experts were submitted to support their request for admission of the evidence of prior accidents and malfunctions. The defendants presented testimony of an expert, Mr. Steven Man-gold, refuting their theory. Mr. Mangold testified that the safety circuitry of each elevator was separate and would not affect the operation of any other elevator in the same bank of elevators. The court concluded that plaintiffs’ experts had drawn unsubstantiated conclusions about the causal relationship between malfunctions due to bad circuits in any of the mid-rise elevators and a malfunction in elevator No. 7. Thus, the district court granted the defendants’ motions in limine insofar as they sought to exclude the evidence of malfunctions in all the elevators, except No. 7. It also excluded all evidence of malfunctions in elevator No. 7 occurring after the incident involving plaintiff Michael. As to the excluded evidence, the court held that “it would have been more prejudicial than probative to let into testimony problems in elevators other than elevator No. 7.” The court did rule that the logs showing prior instances of abrupt, sudden or jolting stops in elevator No. 7 were admissible “to lend credibility to plaintiff’s unwitnessed account of what happened to him when he was in the elevator alone.” Finally, the district court allowed plaintiffs’ experts to testify about evidence in their reports about prior abrupt stops in elevator No. 7, but excluded any reference by them to accidents in other elevators or in elevator No. 7 occurring after the date of the alleged accident. We review for abuse of discretion the district court’s rulings with respect to plaintiffs’ evidentiary tenders. United States v. Stewart, 806 F.2d 64, 68 (3d Cir.1986). The admission or exclusion of evidence is a matter well suited to the exercise of the district court’s discretion. In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d. Cir.1990). After a review of the record and in light of the rules of evidence applied by the district court, we cannot say that it committed reversible error in its evidentiary rulings. The evidence of malfunction in other elevators was found inadmissible because the plaintiffs' theory of concurrent causation of the malfunction in several elevators at once was purely speculative. Accordingly, plaintiffs did not establish the cause of the accidents in the other elevators or make a sufficient showing that they were related to the accident in elevator No. 7. The district court therefore acted within the scope of its legitimate discretion in excluding reports of malfunctions of the other elevator prior to the accident, given the prejudicial and speculative nature of such evidence. Finally, the district court did not abuse its discretion in excluding evidence of subsequent malfunctions in elevator No. 7. Gumbs v. International Harvester, 718 F.2d 88, 97-98 (3d Cir.1983); Wojcieschowski v. Long-Airdox Div., 488 F.2d 1111 (3d Cir.1973). These incidents in elevator No. 7 after July 18 were not shown to be similar enough to the circumstances in this case to overcome the prejudice inherent in admitting this evidence. We will, therefore, affirm the judgment of the district court in Armor’s favor. Thus, we need not address Armor’s alternative ground for affirmance that the district court erred in refusing to direct a verdict in its favor based on the insufficiency of plaintiffs’ evidence. II. DIRECTED VERDICT FOR PRUDENTIAL Plaintiffs appeal the order of the district court granting Prudential’s motion for a directed verdict at the close of plaintiffs’ case. In proceeding with the case against Armor the district court informed the jury that Prudential had been “dismissed because there was no evidence against the defendant as a matter of law, upon which you could find Prudential was negligent here.” In rejecting the plaintiffs’ motion for a new trial, the district court observed that, [T]here was no evidence of any culpable conduct on the part of Prudential. Prudential was the owner of the building in which the elevator was installed but the uncontroverted evidence was that Armor had sold an [sole and] exclusive control of the elevators and that plaintiff was basing its cause of action on the basis of Armor’s failing to properly maintain the elevators. We accordingly find no merit to plaintiff’s contention that the entry of a directed verdict was incorrect. Tait, slip op. 10. The district court’s opinion did not discuss whether there was sufficient evidence to satisfy the elements of res ipsa loquitur in order to create a permissible inference of Prudential’s negligence. In granting a directed verdict in Prudential’s favor, however, the district court must have found either (1) that Prudential delegated its duty of care by contract to Armor or (2) that there was insufficient evidence to warrant giving a res ipsa lo-quitur instruction against Prudential. On appeal, plaintiffs contest the correctness of the district court’s action. Review of a directed verdict is plenary. “A motion for directed verdict should be granted only if, viewing the evidence in the light most favorable to the non-moving party, there is no question of material fact for the jury, and any verdict other than the one directed would be erroneous under the governing law.” MacLeary v. Hines, 817 F.2d 1081, 1083 (3d Cir.1987). The district court must deny a defendant’s directed verdict motion under this standard “if there is evidence reasonably tending to support the recovery by the plaintiffs as to any of its theories of liability.” Bielevicz v. Dubinon, 915 F.2d 845, 849 (3d Cir.1990). Our first task is to determine whether the district court correctly found that Armor had sole and exclusive control of the elevator. In doing so, we shall assume without deciding that Prudential could have relieved itself of any legal responsibility to plaintiffs under Pennsylvania law by delegating sole and exclusive control to its service contractor. But such an assumption does not help Prudential here because it is clear on this record that it too owed plaintiff Michael, as an elevator passenger, a duty of care. The contract between Armor and Prudential demonstrates that Prudential reserved to itself ultimate control over its elevators and their operation. While the service contract delegates primary responsibility for installation, inspection repairs and maintenance to Armor, the service company did not assume sole and exclusive control of elevator No. 7. In pertinent part, the contract governing Armor’s installation of the new elevator safety circuits states that, “Armor does not assume possession, management, or control of any part of the equipment, but such remains purchaser’s exclusively as the owner or lessee thereof.” Plaintiff’s Exhibit 10. Nor was Armor required “to make renewals or repairs necessitated by non-repetitive or infrequent fluctuations in the AC power systems or extreme variations in machine room temperature, or by negligence or misuse of the equipment.” Id. It further provides that the purchaser, Prudential, is responsible “to keep the elevator pit(s) and machine room(s) free from water and to not use these areas for storage purposes.” Id. In addition, under the contract, Armor does not agree “to install new attachments on the elevators whether recommended or directed by insurance companies or governmental authorities, or to make any replacements with parts of a different design, or to replace or realign guide rails.” Still further, Armor assumed no responsibility under the contract over the following parts of the elevator’s mechanisms and equipment: “the car enclosure, hoistway, enclosures, fixture faceplates, power switches, fuses and electrical power feeders to controllers.” Finally, Prudential owes the following contractual duty to Armor under the agreement: TO GIVE ARMOR NOTICE WITHIN TWENTY-FOUR (24) HOURS OF ANY ACCIDENT, ALTERATION OR CHANGE AFFECTING THE EQUIPMENT AND OF ANY CHANGE OR OWNERSHIP; TO DISCONTINUE IMMEDIATELY THE ELEVATOR FROM SERVICE WHEN THE EQUIPMENT BECOMES UNSAFE OR OPERATES IN A MANNER WHICH MIGHT CAUSE INJURY TO A USER THEREOF. The record does not show whether Prudential gave Armor the required notice after each of the 19 separate reported malfunctions prior to Mr. Tait’s alleged accident on elevator No. 7. The provisions of the service contract, without more, amply demonstrate that a jury could find that Prudential retained substantial control over the elevators and their operation. Thus, a jury could infer that the accident may have resulted from Prudential’s independent negligence. This being so, we conclude that the district court erred in stating that Prudential could not be negligent because Armor was given sole and exclusive control of elevator No. 7. We find unacceptable Prudential’s view that this case is controlled by Brletich v. United States Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971), where the court held that a property owner delegated its duty of care to a demolition contractor to demolish a structure on its land. Unlike Brletich, there is evidence in this case to show that Prudential never fully surrendered actual control over the instrumentality to Armor. Further, the contract specifically provides that Armor would not take control, or even temporary possession, of the elevator. Given these record facts, we conclude that Prudential also owed plaintiff Michael a duty to anticipate or guard against the risks that might result in injury to its elevator passengers. Thus, Prudential’s responsibility or “control” was a proper subject for jury determination. Gilbert, 327 A.2d at 102, citing Restatement (Second) of Torts, § 328C (1965). Having determined that Prudential did not delegate its tort law duty of care, we must now determine the standard of care that plaintiff was owed by Prudential as owner of the elevator. Under controlling Pennsylvania law, Prudential, as building owner, is a common carrier who owes a duty of care to maintain the elevator in a reasonably safe condition for passengers. See generally, McKnight v. Kresge, 285 Pa. 489, 132 A. 575, 577 (1926); Gilbert, 327 A.2d at 97; Lynch v. McStome & Lincoln Plaza Assoc., 378 Pa.Super. 430, 548 A.2d 1276, 1279 (1988); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514, 519 (1980). It was clearly within the scope of Prudential’s duty as owner of the instrumentality to make thorough inspections, to keep the common approaches ... in a reasonably safe condition, and to operate the elevator in a reasonably safe manner. McGowan, 420 A.2d at 519. Moreover, Prudential owed this duty even though it contracted with an elevator service company to perform some, but not all, of its duties with respect to the elevators. The Pennsylvania intermediate appellate courts have consistently held that the owners of elevators owe a duty to elevator passengers similar to that of a common carrier. For example, in Dallas v. F.M. Oxford, 381 Pa.Super. 89, 552 A.2d 1109, 1111 n. 4 (1989), the court found that a building owner and an elevator service company could be found negligent in failing to install an elevator door safety device. Similarly, in McGowan, the court held that an apartment house owner’s negligence could be inferred from its failure to provide for frequent enough or proper inspections based on evidence of the plaintiff’s injury when a door closed as she exited an elevator in the building. McGowan, 420 A.2d at 519 n. 2. In Carney v. Otis Elevator Co., 370 Pa.Super. 394, 536 A.2d 804 (1988), the negligence of both the building owner and the elevator service company were established, although the evidence showed that the duty to inspect was under the service company’s, exclusive control. Id., 536 A.2d at 806. Given that Prudential exercised joint control over the elevator, it owed a duty of care as a common carrier to its elevator passengers under Pennsylvania law. We must next decide whether a res ipsa loquitur instruction may be warranted against the owner of an elevator who shares joint control over that instrumentality with an elevator service company. The district court did not decide whether the evidence showing that Prudential jointly controlled the elevator with Armor would permit a finding under Pennsylvania law that Prudential was negligent in causing the alleged accident. Prior to Gilbert, the Pennsylvania courts limited res ipsa loquitur instructions to cases where defendants had “exclusive control” of the instrumentality allegedly causing the accident. Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784, 788 (1963). However, the Pennsylvania Supreme Court thereafter abandoned these “arbitrary requirements [that] have been imposed by earlier cases.” Gilbert, 327 A.2d at 98. In consequence, the application of the res ipsa loquitur doctrine to a building owner in Pennsylvania no longer depends on whether or not the owner exercised exclusive control over the instrumentality. Id. at 99, 101; Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134, 1137, 1139 (1981). Most jurisdictions apply the Restatement rule on res ipsa loquitur to multiple defendants, so long as the defendants are joint tortfeasors or have joint control over the instrumentality causing the injury. See 59 A.L.R. 4th 201 (1988). This is the Pennsylvania rule. Thus, Gilbert held that “if responsibility is vested in and shared by two or more parties, [such as a building owner and its independent contractor], each may be subjected to liability under the rule we adopt.” Id. at 101, (citing Restatement § 328D, cmt. g and illus. 8; 38 A.L.R.2d 905 (1954); 58 Am.Jur.2d Negligence § 503. See generally 63 A.L.R.3d 893, 996 (1975). While it is not clear to us whether the district court decided the issue in ruling on the correctness of the directed verdict, we must determine whether the plaintiffs produced sufficient evidence on the issue of Prudential’s negligence to require that the issue be submitted to a jury. To analyze this issue, we must first determine the scope of plaintiffs’ allegations regarding Prudential’s breach of the duty of care it owes to its elevator passengers. The district court granted Prudential’s motion for a directed verdict on the assumption that “plaintiffs were basing their cause of action on the basis of Armor’s failing to properly maintain the elevators.” This reading of plaintiffs’ complaint is too narrow. Plaintiffs sued Prudential for its breach of its duty of care in operating and maintaining the elevators. Additionally, the plaintiff alleged that Prudential breached its duty to warn passengers of dangerous and defective conditions. We now ask whether there was adequate evidence of Prudential’s breach of its duty of care to warrant a jury instruction on res ipsa loquitur. Plaintiffs sought to establish Prudential’s negligence by circumstantial proof. In some cases, where a party seeking to establish negligence does not establish the exact cause of the injury, he may rely upon res ipsa loquitur, a rule of evidence, that permits the jury to infer the cause of the injury from the circumstances of the event. The Pennsylvania Supreme Court has adopted the Restatement § 328D view that permits the jury to infer the defendant's negligence if the following three elements are satisfied: (a) the event is of the kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiffs and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiffs. Gilbert, 327 A.2d at 100 (citing Restatement § 328D.) When the court determines that all three elements of section 328D(1) have been met, the negligence issue must be given to the jury. See Restatement § 328D(2). See also Carney, 536 A.2d at 806; Smith v. City of Chester, 357 Pa.Super. 24, 515 A.2d 303, 305 (1986); Lanza v. Poretti, 537 F.Supp. 777 (E.D.Pa.1982). Plaintiffs easily satisfied the first element of Section 328D(1). Plaintiff Michael testified that elevator No. 7 made an abrupt stop during its descent near the 19th floor on July 18, 1988 causing him to injure his back. As with plaintiff Michael’s accident, “there are many events, such as ... the fall of an elevator ... where the conclusion is at least permissible that such things do not usually happen unless someone has been negligent ... [and] to such events res ipsa loquitur may apply.” Restatement § 328D(1), cmt. c. See also McGowan, 420 A.2d at 518. Moreover, in the claim against Armor, the district court found that the evidence was sufficient to satisfy the first element of § 328D(1). The same evidence satisfies this element in the claim against Prudential. Second, plaintiffs’ evidence permitted a conclusion that the conduct of plaintiff Michael and other third parties was not a responsible cause of the accident. The plaintiffs’ expert, Mr. Thomas W. Carroll, former chief elevator inspector in the Commonwealth of Pennsylvania, testified that the circumstances of the accident meant that it was not caused by its passenger’s activation of the emergency stop button. Mr. Carroll also testified that the abrupt stop of the elevator was not caused by a loss of electrical power from an outside source, such as a power failure due to the fault of the electrical company. The evidence was therefore sufficient to permit an inference that the first and second elements of § 328D were met. The abrupt stop was an accident that would not have occurred in the absence of negligence and the plaintiff was not responsible for that abrupt stop. We must next consider whether plaintiffs’ evidence supported an inference that the alleged negligence was within the scope of Prudential’s duty of care. The evidence of the plaintiffs’ experts shows that Prudential’s negligence may have caused plaintiff Michael’s injury. These experts testified that the alleged accident was most likely caused by a failure of those responsible to properly maintain its elevators in a reasonably safe condition. Before testifying, the plaintiffs’ three experts studied the records of 19 separate prior malfunctions to elevator No. 7 and numerous problems in the other elevators at Five Penn Square. They also inspected elevator No. 7 and reviewed plaintiff Michael’s deposition testimony. After this examination, these experts testified that the abrupt stop was most likely a result of negligent maintenance leading to a malfunction in the elevator’s circuits and/or its electronic controller. First, Mr. Raymond Harkinson, the mechanic who maintained elevator No. 7 for Armor in July of 1988 (the month of the accident), testified that the elevator accident most likely resulted from accumulated dirt, dust and/or corrosion in the elevator’s safety circuits. Second, Nicholas Haneman, a mechanical engineer, corroborated this view that the accident was caused by a malfunction in the safety circuits and/or in the electronic controller due to improper maintenance. Third, Mr. Carroll agreed with the other experts’ evaluations that substandard maintenance to the elevator’s safety circuits most likely caused plaintiff Michael’s accident. Mr. Carroll also observed that Prudential may have caused the accident by failing to take elevator No. 7 out of service when it began “running strange” eleven days before the accident. In addition to this testimony by the plaintiffs’ experts, the record shows that Prudential was aware of malfunctions in the elevator. It received tenant complaints about the problems in that elevator. Moreover, at various times, Prudential monitored Armor’s performance of its maintenance and repair obligations when the elevators malfunctioned. Because Prudential kept no repair records to indicate whether the problems in the operation of elevator No. 7 had been corrected prior to plaintiff Michael’s alleged accident, the issue of Prudential s possible negligence remained. The plaintiffs’ prima facie burden is met when “the facts proved reasonably permit the conclusion that the defendant’s negligence is the more probable explanation.” Sedlitsky v. Pareso, 400 Pa.Super. 1, 582 A.2d 1314, 1316 (1990) (quoting Restatement § 328D, cmt. e.) See also Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. 245, 411 A.2d 509, 511 (1979). The plaintiffs produced evidence to support their allegation that Prudential’s substandard maintenance caused the accident by allowing dust and dirt in the circuitry. On this record, Prudential may also have been responsible for allowing corrosion to build up in the circuits due to water exposure. Finally, the jury could well infer from this record that the alleged accident was caused by defects in the elevator equipment that were due to Prudential’s failure to inspect and/or to properly supervise the repair of the elevator. From the foregoing evidence, the jury could infer from the record that Prudential was negligent in failing to conduct inspections, to maintain the elevators according to the standard of care it owed its passengers, and to monitor the elevator’s operation in a safe manner. Gilbert, 327 A.2d 94; McGowan, 420 A.2d at 519. The evidence permitted a legitimate inference under Pennsylvania law that Prudential’s failure to properly maintain the elevator may have been a “substantial factor” in causing plaintiff Michael’s injury. See generally, Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284-85 (1978); Halsband v. Union Nat. Bank of Pittsburgh, 318 Pa.Super. 597, 465 A.2d 1014, 1018 n. 3 (1983). Thus, it was error to grant Prudential’s motion for a directed verdict. CONCLUSION The judgment of the district court in Armor’s case will be affirmed. The judgment of the district court in Prudential’s favor will be reversed and the matter remanded for a new trial. The district court’s order dismissing Prudential’s cross-claims against Armor will be vacated and the claim remanded for an 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	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. Ernie M. DUFF, Appellant, v. The KANSAS CITY STAR COMPANY, a corporation, and Emil A. Sees, Appellees. No. 16840. United States Court of Appeals Eighth Circuit. Feb. 16, 1962. Carrol C. Kennett, made argument for appellant, Ray D. Jones, Jr., Kansas City, Mo., was with him on the brief. Carl E. Enggas, for appellee, Colvin A. Peterson, Jr., and also Watson, Ess, Marshall & Enggas, Kansas City, Mo., with him on the brief. Before VOGEL and BLACKMUN, Circuit Judges, and GRAVEN, Senior District Judge. VOGEL, Circuit Judge. Appellant brought this action to recover damages under § 4 of the Clayton Act, 15 U.S.C.A. § 15. Appellant is a former newspaper publisher. Appellees are The Kansas City Star Company, a corporation, and Emil A. Sees, an officer and agent thereof. The corporation is publisher of The Kansas City Star, a daily newspaper, and, during the period involved herein, was also the owner and operator of radio station WDAF and television station WDAF-TV in Kansas City, Missouri. Appellant’s complaint (filed on November 13, 1958) alleged that from 1935 until June 18, 1943, he owned the “Community Herald”, a weekly newspaper published in Kansas City, Missouri; that on June 18, 1943, he copyrighted the name “Community Herald”, and that “By virtue of the war, plaintiff [appellant] for the time being ceased publishing and disseminating said paper”. He also alleged that in June, 1946, he refused an offer of $1,000 for the copyrighted name “Community Herald”. He then alleged that “On or about 1951” he “sought to enter the field of dissemination of news and advertising in the area where he had previously operated his copyrighted paper”. He alleged that he had located an office, made arrangements to have his paper printed, and “made an extensive sampling of the advertising market and newspaper industry at that time, but by virtue of defendants’ attempt to monopolize and monopoly hereinafter stated, plaintiff was prevented from publishing his copyrighted newspaper, although he had the capital, ability, present intention and although there was an immediate need for his paper in the area, he was prevented from engaging in said business.” He sought treble damages in the amount of $600,000 plus $25,000 attorney’s fees and costs. Appellees moved to dismiss appellant’s complaint on the following grounds: One, failure of the allegations to affirmatively demonstrate that appellant had been injured in his business or property within the purview of the Clayton Act; two, the allegations of the complaint did not allege any reasonable basis for computing or ascertaining the damages, if any; and, three, any claim for relief was barred by the applicable statute of limitations. From an order granting appellees’ motion this appeal is taken. Appellant states the question involved here as follows: “Where plaintiff alleged that for approximately eight years he was the owner and publisher of a paid circulation newspaper called the ‘Community Herald’ and obtained a copyright for such name on June 16, 1943: that in 1943, because of World War II, plaintiff temporarily ceased publishing and circulating such newspaper: and that in 1951 he was prepared to resume publication, but was prevented from doing so through the monopolization and attempt to monopolize of the dissemination of news and advertising by the defendants, and was thereby injured and damaged, plaintiff is entitled to be put to his proof, and the Court was in error in dismissing his petition.” § 4 of the Clayton Act, 15 U.S. C.A. § 15, provides in part: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor * * (Emphasis supplied.) Injury to “business or property” is essential to the maintenance of an action for damages under the Clayton Act. This court said, in Jack v. Armour & Co., 8 Cir., 1923, 291 F. 741, 745: “ * * * On both reason and authority, no one can maintain an action under the provisions of section 7 of the Sherman Anti-Trust Act, unless he has suffered an injury in his business or property by proximate reason of the violation by the defendant or defendants whom he sues, of some of the prohibitions contained in that act; for this is what the act says in plain and simple language.” See also Clark Oil Co. v. Phillips Petroleum Co., 8 Cir., 1945, 148 F.2d 580, 582-583, certiorari denied 326 U.S. 734, 66 S.Ct. 42, 90 L.Ed. 437, and Twin Ports Oil Co. v. Pure Oil Co., 8 Cir., 1941, 119 F.2d 747, 751, certiorari denied 314 U.S. 644, 62 S.Ct. 84, 86 L.Ed. 516. For purposes of this appeal we must accept as true all well pleaded allegations of appellant’s complaint. Accordingly, we find therefrom that appellant possessed the copyrighted name “Community Herald” and a desire, after an absence of eight years, to reenter the newspaper publishing business; that he had located an office, made arrangements to have his paper printed, and took extensive samplings of the advertising market and newspaper industry at that time and that he was kept from reentering the newspaper business because of appellees’ monopoly. Thus, what he is seeking here is damages by reason of loss of anticipated profits in an anticipated business. This he may not do. See Broadcasters, Inc. v. Morristown ‘Broadcasting Corp., D.C.N.J., 1960, 185 F.Supp. 641, 644-645. He ceased publishing his paper in 1943. In 1951 he was in no different position than any stranger who might arrive in Kansas City with the desire or wish to enter the newspaper publishing field and who claimed that because of appellees’ monopoly he was prevented from doing so. The trial court very correctly stated in his memorandum dismissing appellant’s complaint: “ * * * The gist of a private treble-damage action is not the violation of the antitrust laws, as such, but is the allegation of facts from which it may be inferred that a party plaintiff was caused direct injury to his business or property as a result of such violation. A civil action for treble damages is not based upon the existence of a monopoly or attempt to monopolize, in and of itself. The statute gives a right of action to a private litigant based on acts done pursuant to a monopoly or attempt to monopolize that directly injure or damage him in his business or property, (cf.) Burnham Chemical Co. v. Borax Consolidated, [9 Cir.,] 170 F.(2d) 569; Momand v. Universal Film Exchange, 172 F. (2d) 37 (Cir. 1); Shotkin v. General Electric Co. (Cir. 10) 171 F.(2d) 236; Tilden v. Quaker Oats Co., 1 F.(2d) 160 (Cir. 7); Buckeye Powder Co., v. [E. I.] DuPont Powder Co., 248 U.S. 55 [39 S.Ct. 38, 63 L. Ed. 123]; Image and Sound Service Corp. v. Altec Service Corp., 148 F.Supp. 237 (D.C.Mass.); Peller v. International Boxing Club, Inc., 135 F.Supp. 942 (N.D.Ill), aff. 227 F. (2d) 593 (Cir. 7).” Nevertheless, appellant argues that while he “ * * * does not allege any large capital expenditures, * * * he does allege ownership of a copyrighted name for a newspaper which had a value because of his previous conduct of a newspaper publishing business under that name.” And in his complaint he does claim: “At least since 1936 and continuously up to date by reason of defendant’s continuous acts, * * * plaintiff has been injured in his business and property of owning copyright dated June 18, 1943 pertaining to the ‘COMMUNITY HERALD’ in that he has never been allowed or permitted to sell, lease, assign or dispose of said copyright in a market * * * free of defendants’ restraints and by reason thereof, the value of the copyright has either been destroyed, limited or hampered; * * Appellant’s contention with reference to the depreciated value of the name “Community Herald” is unsupported by citation to any authority. The name “Community Herald” in and of itself is not a valid, copyrightable name. It is no more than the common name of a once-published newspaper. The name of a newspaper at best, if it qualifies as being unique and original, can- be trademarked. As stated in Pulitzer Pub. Co. v. Houston Printing Co., 5 Cir., 1926, 11 F.2d 834, 836, certiorari denied 273 U.S. 694, 47 S.Ct. 91, 71 L.Ed. 844, being concerned with the St. Louis Post-Dispatch trying to prevent the Houston Post-Dispatch from using the name “Post-Dispatch”: “ * * * was settled long prior to the Trade-Mark Act of February 20, 1905 * * * that one is not entitled to the exclusive use of a trade-mark consisting merely of words which are descriptive of the qualities or characteristics of an article of trade. Columbia Mill Co. v. Alcorn, 14 S.Ct. 151, 150 U.S. 460, 37 L.Ed. 1144; United Drug Co. v. [Theodore] Rectanus [Co.] 39 S.Ct. 48, 248 U.S. 90, 63 L.Ed. 141; Warner & Co. v. [Eli] Lilly & Co., 44 S.Ct. 615, 265 U.S. 526, 68 L.Ed. 1161; Searle & Hereth Co. v. Warner, 112 F. 674, 50 C.C.A. 321.” Be that as it may, no trade-mark registration was ever made. Thus the only protection available to the appellant here with reference to the name “Community Herald” would be that protection given to trade names; that is, protection against wrongful use of the name “Community Herald” by another party. However, there is no such issue involved here; hence, the only question left to determine is whether under the circumstances of this case there is a property right in the name “Community Herald”. Judge Learned Hand, in Mutual Life Ins. Co. v. Menin, 2 Cir., 1940, 115 F.2d 975, 979, certiorari denied 313 U.S. 578, 61 S.Ct. 1096, 85 L.Ed. 1536, said: “ * * * the referee obviously supposed that the name passed like a chattel, a chose-in-aetion, or any other bit of property. In this we think he was in error; we can find no warrant in the books for considering a name, qua name, as property. No doubt ‘property’ is itself a conventional concept, but so are all legal concepts; this one has not as yet embraced names.” See also 18 C.J.S., Copyright and Literary Property, § 10(f), p. 143. Judge Woodrough, speaking for this court in Katz Drug Co. v. Katz, 8 Cir., 1951, 188 F.2d 696, 699, said, with reference to the analogous question of trade-marks: “ * * * [It is settled] in this circuit that there is no such thing as property in a trade-mark except as a right appurtenant to an established business or trade with which the mark is employed * * (Emphasis supplied.) The question narrows itself as to whether there is an established business (goodwill) to which the name “Community Herald” attaches. If none exist, then there is no property right in the name. See Lawyers Title Ins. Co. v. Lawyers Title Ins. Corp., 1939, 71 App.D.C. 120, 109 F.2d 35, 43, certiorari denied 309 U.S. 684, 60 S.Ct. 806, 84 L.Ed. 1028, wherein Mr. Justice Rutledge, then a member of the Court of Appeals for the District of Columbia, stated: «-* * * Although ‘property’ may be admitted to exist, whether in a trade-mark, a trade name or a corporate name, that is true, broadly speaking, whenever economic interests are protected by legal process, but only to the extent that they are so protected.” (Emphasis supplied.) After eight years of non-publication appellant possessed neither business nor property, including goodwill, which could have been damaged by appellees’ monopoly within the period of limitation. We are of the opinion that the trial court was correct in holding: “ * * * ^ js dear from the allegations of the complaint, accepting the same to be true as alleged by plaintiff, that plaintiff had no established business or property during any period of time within the applicable statute of limitation, supra, which could have been injured or damaged by the monopoly and acts of attempt to monopolize, as here charged by him. As a consequence thereof, plaintiff’s complaint should be, and the same is hereby, dismissed, * * This case is affirmed. . Pursuant to § 5 of the Clayton Act, 15 TJ.S.C.A. § 16, the statute of limitations herein was suspended during the period January 6, 1953, until November 15, 1958, on account of the pendency of suits instituted by the United States against the appellees. See Kansas City Star Co. v. United States, 8 Cir., 1957, 240 F.2d 643, certiorari denied 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438. The trial court, in accordance with Powell v. St. Louis Dairy Co., 8 Cir., 1960, 276 F.2d 464, held that the Missouri three-year statute of limitations, Section 516. 130 RSMo 1949, V.A.M.S., was applicable. Accordingly, all damages, if any, which might have accrued to the appellant prior to January 7, 1950, were barred. . 2 Nims, Unfair Competition and TradeMarks (4th Ed.), § 272, p. 889: “ * * * The right secured by the copyright laws is the right to use a literary composition — the product of the mind and genius of the author — not the name or title given to it.” See also Atlas Mfg. Co. v. Street & Smith, 8 Cir., 1913, 204 F. 398, 403, appeal dismissed 231 U.S. 348, 34 S.Ct. 73, 58 L.Ed. 262, certiorari denied 231 U.S. 755, 34 S.Ct. 323, 58 L.Ed. 468; 18 C.J.S., Copyright and Literary Property, §§ 44, 47. . See 2 Nims, supra, § 274, pp. 892-893; Spring, “Rights and Risks, Publicity, Television, Radio, Motion Pictures, Advertising, and the Theater,” W. W. Norton & Co., New York, 1952, pp. 133, 318 n. 12a; 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 112b. See also Farmers’ Educ. & Coop. Union of America v. Iowa Farmers Union, D.C. S.D.Ia., 1957, 150 F.Supp. 422, 424, aif’d sub. nom. Stover v. Farmers’ Educ. & Coop. Union of America, 8 Cir., 1958, 250 F.2d 809, certiorari denied 356 U.S. 976, 78 S.Ct. 1139, 2 L.Ed.2d 1149. . Spring, supra, p. 318 n. 12a: “ * * * Since most periodicals use common names, or combinations thereof, trademark registration cannot be had and a secondary meaning must be shown to be attached, and relief sought under the theory of unfair competition.” For discussion of cases on this point, see 2 Nims, supra, § 279, pp. 925-935. 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:

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