Split (2)

train · 553k rows

task stringclasses 260 values	output stringlengths 2 5	instruction stringlengths 576 44k
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Murray H. INGALLS, Appellant, v. Eugene M. ZUCKERT, Secretary of the Air Force, Appellee. No. 16788. United States Court of Appeals District of Columbia Circuit. Argued Oct. 11, 1962. Decided Oct. 25, 1962. Mr. Donald H. Dalton, Washington, D. C., for appellant. Mr. Daniel A. Rezneck, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee. Before Edgerton, Burger and Wright, Circuit Judges. PER CURIAM. Appellant, an Air Force major with 14 years’ service and an outstanding war record, was given the choice under Air Force Regulation 35-66 of resigning for the good of the service or facing a general court martial. Acting without counsel in the 72 hours allowed him, he chose to resign. Alleging failure on the part of the Air Force to afford him “the opportunity of consulting legal counsel regarding the advisability of submitting [his] resignation,” he asks this court to reverse the summary judgment granted below denying him reinstatement. Air Force Regulation 35-66, at least by implication, required that appellant be afforded the opportunity to consult with legal counsel before making his decision. Failure to comply with its own regulation would render appellant’s resignation void. On this question, the «evidence now of record presents a factual issue Consequently, summary judgment was improvidently granted. In view of this disposition, we do not jeach the other issues raised by appellant. Respondent’s laches defense is without merit. Reversed. . Including 40 combat missions and numerous medals. . This language is in the form letter (Attachment 3, AFR 36-12) required by AFR 35-66 (July 23, 1956) to be used in submitting a resignation under that regulation. Appellant signed this form letter including the statement that he had “been afforded the opportunity.” An amendment to AFR 35-66 requiring the appointment of counsel, though promulgated before appellant’s resignation was accepted, did not become effective until five days later. . It is not necessary to determine whether appellant was entitled to consult counsel as a matter of right since “the Secretary * * * was bound by the regulations which he himself had promulgated for dealing with such cases * * Vitarelli v. Seaton, 359 U.S. 535, 540, 79 S.Ct. 968, 3 L.Ed.2d 1012. See also Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 226 F.2d 35. . See Paroczay v. Hodges, 111 U.S.App.D.C. 362, 297 F.2d 439. . F.R.Civ.P., Rule 56; Runkle v. Nong Kimny, 105 U.S.App.D.C. 285, 266 F.2d 689; Evers v. Buxbaum, 102 U.S.App.D.C. 334, 253 F.2d 356. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. MARYLAND v. DYSON No. 98-1062. Decided June 21, 1999 Per Curiam. In this case, the Maryland Court of Special Appeals held that the Fourth Amendment requires police to obtain a search warrant before searching a vehicle which they have probable cause to believe contains illegal drugs. Because this holding rests upon an incorrect interpretation of the automobile exception to the Fourth Amendment’s warrant requirement, we grant the petition for certiorari and reverse. At 11 a.m. on the morning of July 2, 1996, a St. Mary’s County (Maryland) Sheriff’s Deputy received a tip from a reliable confidential informant that respondent had gone to New York to buy drugs, and would be returning to Maryland in a rented red Toyota, license number DDY 787, later that day with a large quantity of cocaine. The deputy investí-gated the tip and found that the license number given to him by the informant belonged to a red Toyota Corolla that had been rented to respondent, who was a known drug dealer in St. Mary’s County. When respondent returned to St. Mary’s County in the rented car at 1 a.m. on July 3, the deputies stopped and searched the vehicle, finding 23 grams of crack cocaine in a duffel bag in the trunk. Respondent was arrested, tried, and convicted of conspiracy to possess cocaine with intent to distribute. He appealed, arguing that the trial court had erroneously denied his motion to suppress the cocaine on the alternative grounds that the police lacked probable cause, or that even if there was probable cause, the warrantless search violated the Fourth Amendment because there was sufficient time after the informant’s tip to obtain a warrant. The Maryland Court of Special Appeals reversed, 122 Md. App. 413, 712 A. 2d 573 (1998), holding that in order for the automobile exception to the warrant requirement to apply, there must not only be probable cause to believe that evidence of a crime is contained in the automobile, but also a separate finding of exigency precluding the police from obtaining a warrant. Id., at 424, 712 A. 2d, at 578. Applying this rule to the facts of the case, the Court of Special Appeals concluded that although there was “abundant probable cause,” the search violated the Fourth Amendment because there was no exigency that prevented or even made it significantly difficult for the police to obtain a search warrant. Id., at 426, 712 A. 2d, at 579. The Maryland Court of Appeals denied certiorari. 351 Md. 287, 718 A. 2d 235 (1998). We grant certiorari and now reverse. The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U. S. 386, 390-391 (1985). As we recognized nearly 75 years ago in Carroll v. United States, 267 U. S. 132, 153 (1925), there is an exception to this requirement for searches of vehicles. And under our established precedent, the “automobile exception” has no separate exigency requirement. We made this clear in United States v. Ross, 456 U. S. 798, 809 (1982), when we said that in cases where there was probable cause to search a vehicle “a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.” (Emphasis added.) In a case with virtually identical facts to this one (even down to the bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U. S. 938 (1996) (per curiam), we repeated that the automobile exception does not have a separate exigency requirement: “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment... permits police to search the vehicle without more.” Id., at 940. In this case, the Court of Special Appeals found that there was “abundant probable cause” that the car contained contraband. This finding alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement, a conclusion correctly reached by the trial court when it denied respondent’s motion to suppress. The holding of the Court of Special Appeals that the “automobile exception” requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to our holdings in Ross and Labron. We therefore grant the petition for writ of certiorari and reverse the judgment of the Court of Special Appeals. It is so ordered. Justice Breyer in dissent suggests that we should not summarily reverse a judgment in a criminal case, even though he agrees with this opinion as a matter of law. But to adopt that position would simply leave it in the hands of a respondent — who had obtained a lower court judgment manifestly wrong as a matter of federal constitutional law — to avoid summary reversal by the simple expedient of refusing to file a response. While we have on occasion appointed an attorney to file a brief as amicus curiae in a case where we have granted certiorari, in order to be sure that the argued case is fully briefed, we have never done so in cases which we have summarily reversed. The reason for this is that a summary reversal does not decide any new or unanswered question of law, but simply corrects a lower court’s demonstrably erroneous application of federal law. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES of America, Plaintiff-Appellee, v. Gene Edward HAMPTON, Defendant-Appellant. No. 84-2704. United States Court of Appeals, Tenth Circuit. March 11, 1986. Richard W. Anderson of Freeman, Buxton & Anderson (Jack L. Freeman, with him on brief), Edmond, Okl., for defendant-appellant. Paul G. Hess, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., with him on brief), Muskogee, Okl., for plaintiff-appellee. Before McKAY, SETH and LOGAN, Circuit Judges. SETH, Circuit Judge. Appellant, Gene Edward Hampton, was convicted on nine counts of a ten count indictment by a jury in the Eastern District of Oklahoma. The indictment included counts of: conspiracy and racketeering activities affecting interstate commerce in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (counts 1 and 2); conspiracy to and obstructing, delaying and affecting interstate commerce by means of extortion under color of official right as Sheriff of Bryan County, Oklahoma in violation of the Hobbs Act, 18 U.S.C. § 1951 (counts 3-8); and use of intimidation and physical force with intent to influence the testimony of witnesses in an official proceeding in violation of 18 U.S.C. § 1512 (counts 9-10). In essence, the indictment alleged that the appellant, Gene Hampton, was using his position as Sheriff of Bryan County to extort payoffs from club operators and others in return for selective enforcement of liquor, gambling and other laws. There was evidence of appellant using a “bag-man” to collect payoffs and a number of club owners also testified to making “donations” to a “Narcotic Fund.” These payments purportedly ensured nonharassment, staying open beyond the 2:00 a.m. closing time and in at least one instance allowing the safe operation of a dice game. There was evidence that Sheriff Hampton directed a deputy to terminate an investigation into gambling in Durant conducted for the district attorney, and also that the Sheriff warned an ongoing dice game of an impending raid by authorities. On appeal the former Sheriff Hampton raises several issues for review. He contends that the trial court erred in denying his motion for judgment of acquittal or new trial on the RICO conspiracy count based on insufficiency of evidence. Specifically, the appellant asserts that the failure of the government to prove his alleged co-conspirator, Roy Harris, committed two of the necessary predicate offenses means Roy Harris could not have been a member of a RICO conspiracy and the appellant therefore could not have conspired with him. The object of a RICO conspiracy must be to violate a substantive RICO provision. United States v. Elliott, 571 F.2d 880, 903 (5th Cir.). In this instance the substantive RICO offense was conducting or participating in the operation of the Bryan County Sheriff’s Office through a pattern of racketeering activity. A RICO conspiracy requires more than merely a conspiracy to commit the predicate crimes necessary to establish the pattern. In order for appellant to be found guilty of the RICO conspiracy charge, he and Roy Harris must have agreed to participate in a pattern of racketeering through the operation of the Sheriffs Office. We have often recognized that the secretive nature of a criminal conspiracy means that direct proof is seldom available and the required unlawful agreement may be inferred from circumstantial evidence. United States v. Zang, 703 F.2d 1186,1191 (10th Cir.); Jordan v. United States, 370 F.2d 126, 128 (10th Cir.). On appeal, this court must view the evidence and inferences drawn by the jury in the light most favorable to the government. United States v. Dickey, 736 F.2d 571, 581 (10th Cir.). There was evidence of the appellant and Roy Harris’ cooperation in the extortion scheme through Roy Harris’ acting as a “bagman” for payoffs to the Sheriff, his involvement in gambling operations which appellant allowed to operate, and appellant’s termination of an ongoing investigation into gambling operations which Roy Harris was conducting. We are more than satisfied that a reasonable jury could infer that appellant and Roy Harris intended to take advantage of the Bryan County Sheriff’s Office through a pattern of extortion and other racketeering activity. Appellant next contends that the Fifth Amendment’s double jeopardy provision prohibits his conviction and the consecutive sentences for both violation of the substantive RICO charge and the Hobbs Act racketeering charges which served as the predicate offenses for the RICO conviction. Thus that the Hobbs Act charges require the same proof as the substantive RICO charge. Appellant’s contention is that the Supreme Court prohibited double punishment of this nature in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. We must disagree. The double jeopardy clause of the Fifth Amendment protects against a second prosecution for the same offense after an initial acquittal; it denies a second prosecution for the same offense after a conviction; and it protects against multiple punishments for a single offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656. In the much discussed Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the Court considered several sales of morphine to the same person at about the same time. There were two counts for one sale — one count for sale not from the original stamped package under the then section 1 of the “Narcotics Act” and another count based on the same transaction but charging a sale not pursuant to a written order (section 2). The Court found two offenses permitting two separate punishments, and stated the frequently quoted test: “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.” 284 U.S. at 304, 52 S.Ct. at 182. The Court much later in Whalen v. United States, 445 U.S. 684, 693, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715, in referring to Blockburger, said: “And where the offenses are the same under that test, cumulative sentences are not permitted, unless elsewhere specially authorized by Congress.” Other Supreme Court holdings addressing this issue have demonstrated that Blockburger is not a constitutional “litmus test” but rather a tool of statutory construction to determine whether Congress intended to allow two statutory offenses to be punished cumulatively. Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715. As stated in Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, the double jeopardy guarantee serves principally as a restraint on courts and prosecutors while the legislature remains free to fix punishments. And, although the Court conceded in Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 677, 74 L.Ed.2d 535, that the double jeopardy clause may not be totally inapplicable to the legislative branch, the Court in Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275, said, at least in the context of multiple punishments in a single proceeding, “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” The Court went on to say: “The Blockburger test is a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” 450 U.S. at 340, 101 S.Ct. at 1142. An examination of the statutory framework and legislative history of RICO demonstrates that Congress did clearly articulate an intent to permit cumulative punishment for substantive RICO violations and the underlying predicate acts. See also United States v. Hartley, 678 F.2d 961 (11th Cir.); United States v. Hawkins, 658 F.2d 279 (5th Cir.); United States v. Rone, 598 F.2d 564 (9th Cir.). Congress was particularly clear in stating its intentions in enacting the RICO provisions: “It is the purpose of this Act to seek the eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process, by establishing new penal prohibitions, and by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 923 (1970) (emphasis added). As the Ninth Circuit commented in United States v. Rone, 598 F.2d 564, 571 (9th Cir.), “[tjhere is nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions or consecutive sentences for a RICO offense and the underlying or predicate crimes which make up the racketeering pattern.” Indeed, Congress specifically stated that “[njothing in this title shall supersede any provision of Federal, State, or other law imposing criminal penalties or affording civil remedies in addition to those provided for in this title.” Pub.L. 91-452 § 904(b). Further support is found in the statutory definition of a “pattern of racketeering” activity which “requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years {excluding any period of imprisonment) after the commission of a prior act of racketeering activity.” Pub.L. 91-452 § 901(a) (emphasis added). Although we do not imply as other courts have that a conviction on the predicate acts is necessary for a substantive RICO conviction, United States v. Brown, 583 F.2d 659 (3d Cir.), we do read the above provision to indicate that Congress envisioned that a RICO conviction and sentence could be based upon a predicate crime for which the defendant has already been punished. The above cited evidence of Congress’ intent to authorize cumulative punishments for substantive RICO violations and the predicate offenses requires us to conclude the district court properly imposed consecutive sentences upon appellant. Lastly, we consider appellant’s contention that count 1 of the indictment charging him with conspiring to violate the substantive RICO provisions was in fact a charge of multiple conspiracies rather than a single conspiracy. Appellant argues, correctly, that this would contradict the Supreme Court’s holding in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. However, the indictment in this case does not contain allegations of multiple offenses in a single count. Appellant argues that there were separate conspiracies with the only common element being his alleged participation which he further contends is too tenuous a connection to support their combination in a single count. We disagree. The common denominator between the “kickbacks”, dice games and other schemes goes further than appellant’s alleged participation. More significantly, they all involve the participation of appellant as Sheriff of Bryan County and the corruption of that office. We have considered appellant’s other contentions on this appeal and find them to be without merit. AFFIRMED. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appel1_1_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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. H. P. CUMMINGS CONST. CO. v. MARBLE-LOID CO. No. 4539. Circuit Court of Appeals, Third Circuit. Aug. 18, 1931. Edwards & Smith, of Jersey City, N. J. (Harford T. Marshall, of New York City, of counsel), for appellant. Hunt, Hill & Betts, of New York City (H. Victor Crawford, of New York City, of counsel), for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. DAVIS, Circuit Judge. This is an appeal from a judgment, entered by the court sitting without a jury, dismissing the complaint in an action to recover $6,766.23 damages for breach of an alleged contract of indemnity. The plaintiff-appellant, a Massachusetts corporation, entered into a contract with the state of Maine for the erection of a girls’ dormitory, an addition to the kitchen building, and an addition to the laundry building, for the School for Feeble Minded m the Town of West Pownal, Cumberland County, Me. The defendant, Marbleloid Company, made a subcontract with the plaintiff to lay a marbleloid floor in the new dormitory and dining room addition, “in accordance with the plans and specifications of H. S. Coombs, architect.” The floors were laid by the defendant and soon cracked. The state of Maine called upon the plaintiff, general contractor, to relay them, and it in turn called upon the defendant to do it; but the defendant refused on the ground that the cracking was due, not to its work, but to craeks in the concrete .foundation which it did not lay and with which it had nothing to do. Thereupon the state relaid them, brought suit against the plaintiff for the cost thereof, and secured judgment against it for $3,042.55. The plaintiff then brought suit against defendant for the amount of the judgment which it was compelled to pay and costs of $3,723.68, which it incurred in defending the suit, making the entire damages $6,766.23. The defendant contends that the so-called “proceedings at trial” should be stricken out and the appeal dismissed because a bill of exceptions was never presented to or signed by the trial judge and consequently there is nothing for this court to consider. By a uniform course of decisions, no point, as a general rule, will be considered by an appellate court unless objections are made and exceptions taken to the rulings thereon at the trial. It is further necessary that the exceptions thus taken be presented to the judge for allowance at the same term or within a further time allowed by order entered at that term or by a standing rule of court. Texas Company v. Brilliant Manufacturing Company (C. C. A.) 2 F.(2d) 1; Atchison, Topeka & Santa Fe R. R. Co. v. Nichols (C. C. A.) 2 F.(2d) 12; Goetzinger v. Woodley (C. C. A.) 17 F.(2d) 83; Reilly v. Beekmam (C. C. A.) 24 F.(2d) 791; North River Ins. Co. v. Guaranty State Bank of Farwell (C. C. A.) 30 F.(2d.) 881; Michigan Insurance Bank v. Eldred, 143 U. S. 293, 12 S. Ct. 450, 36 L. Ed. 162; Jennings v. Philadelphia, Baltimore & Washington Railway Co., 218 U. S. 255, 31 S. Ct. 1, 54 L. Ed. 1031; O’Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827. But appellant says that a bill of exceptions was unnecessary in this ease, for the reason that “in trials by the court in an action at law with a jury waived by stipulation in writing, the sufficiency of facts specially found to support the judgment is open to review without exceptions and a hill of exceptions.” This is true, and the following eases support that proposition: Guaranty Trust Co. v. Koehler (C. C. A.) 195 F. 669; City of Cleveland v. Walsh. Construction Co. (C. C. A.) 279 F. 57; Templar Motors Co. v. Bay State Pump Co. (C. C. A.) 289 F. 24; Tyng v. Grinnell, 92 U. S. 467, 23 L. Ed. 733; Seeberger v. Schlesinger, 152 U. S. 581, 14 S. Ct. 729, 38 L. Ed. 560; 28 USCA § 875. But this rule of law is not applicable in this case, for the court did not make special findings of fact and its general findings have the effect of a general verdict of a jury, which is conclusive upon all matters of fact. There being no exceptions to rulings of law in the progress of the trial and no bill of exceptions, bringing up those portions of the record upon which the assignments of error are predicated, the review is limited to the pleadings and opinion and there is nothing in them justifying a reversal. North River Insurance Co. v. Guaranty State Bank of Farwell (C. C. A.) 30 F.(2d) 881; Lehnen v. Dickson, 148 U. S. 71, 13 S. Ct. 481, 37 L. Ed. 373; St. Louis v. Western Union Telegraph Co., 166 U. S. 388, 17 S. Ct. 608, 41 L. Ed. 1044; Vicksburg, etc., Railway Co. et al. v. Anderson-Tully Co., 256 U. S. 408, 415, 41 S. Ct. 524, 65 L. Ed. 1020. But passing this technical question, the same conclusion must be reached on the merits of the ease. The plaintiff sued to recover damages on a contract of indemnity and not to recover on the breach of a contract because of negligent construction of the work which the defendant agreed to perform. The contract between the plaintiff and defendant provided that the defendant was to lay marbleloid floors “in accordance with the plans and specifications of H. S. Coombs, Architect,” which were the plans and specifications in the general contract between the plaintiff and the state of Maine. In section, 44a of these specifications, it appears that the contractor agreed to indemnify the state of Maine for damages due to poor workmanship, and the plaintiff says that these plans and specifications are incorporated in the subcontract by reference and, therefore, an implied contract to indemnify the plaintiff by the defendant arose. But the reference in the subcontract to “the plans and speciflea^ tions of H. S. Coombs, Architect,” was evidently for the mere purpose of identifying the floors to be laid and the manner in which the work was to be done in laying them. The rule of law baséd upon authority and sound reason is that in the case of subcontracts, as in other express agreements in writing, a reference by the contracting parties to an extraneous writing for a particular purpose makes it a part of their agreement only for the purpose specified. Martin v. Oberle, 85 Misc. Rep. 35, 147 N. Y. S. 60; Miller v. Hamilton (C. C. A.) 216 F. 131; Guerini Stone Co. v. J. P. Carlin Construction Co., 240 U. S. 264, 36 S. Ct. 300, 60 L. Ed. 636. It was far from the intention of the defendant, when it entered into the contract to lay floors, to incorporate therein all the provisions of the plans and specifications in the contract between the plaintiff and the state of Maine. The real purpose of bringing this suit on the theory of a contract to indemnify was to avoid the statute of limitations (Rev. St. Me. 1930, e. 95, § 90). If this action is based upon a contract to indemnify, it is no-t barred by the statute of limitations, but if based on the breach of a contract to lay marbleloid floors, it is barred by the statute. In the case of a contract to indemnify, the cause of action accrues and the statute begins to run when and only when the loss or damage oceurs. But in the ease of the breach of a contract to do certain work, the cause of action accrues and the statute' begins to run from the time of the breach. 3 Willis-ton, Contracts, § 2004, p. 3402; 37 Corpus Juris, p. 838. Judgment against the plaintiff in the Supreme Judicial Court of Maine was rendered on April 4, 1929. But the last work was done and the floors were completed on September 22,1922. The contract, if breached at all, was breached on or before that date and the right of action accrued then and the statute began to run at that time and not when the floors cracked or the state of Maine secured judgment against the plaintiff. Painter Fertilizer Co. v. Kil-Tone Co., 105 N. J. Law, 109, 143 A. 332; Hoppaugh v. McGrath, 53 N. J. Law, 81, 21 A. 106; Gogolin et al. v. Williams, 91 N. J. Law, 266, 102 A. 667; Wilcox v. Plummer’s Executors, 29 U. S. (4 Pet.) 172, 7 L. Ed. 821. The suit had to be brought within six years, that is, on or before September 22, 1928; but it was not begun until December, 1929, and so was barred by the statute. The judgment against the plaintiff in Maine was not conclusive upon the defendant. To entitle the plaintiff to indemnification for the damages recovered against it in the Maine suit, it must show a contract with the defendant which in terms and legal effect embraced the entire cause of action for which such damages were recovered. In such ease the defendant may show that the injury complained of was occasioned in whole or in part hy the acts or conduct of the plaintiff, or any other matter which as between it and the plaintiff would exonerate it from liability. Hoppaugh et al. v. McGrath, 53 N. J. Law, 81, 21 A. 106. The defendant contended that the cracking of the floors was due to the cracking of the concrete foundations beneath them and for these foundations the plaintiff was responsible. It was admitted on the trial that three witnesses for the defendant, if called, would so testify. The plaintiff wrote defendant on June 28, 1923, that “these floors had developed cracks due to the concrete slab under them cracking.” This letter was an admission by the plaintiff of defendant’s contention. This proof the plaintiff met only by the offer in evidence of the Maine judgment and this was incompetent. Whether considered on technical grounds or on the merits, the judgment must be affirmed. 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_respondent	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. PHYLE v. DUFFY, WARDEN. No. 655. Argued April 20-21, 1948. Decided June 7, 1948. Morris Lavine argued the cause and filed a brief for petitioner. Clarence A. Linn, Deputy Attorney General of California, argued the cause for respondent. With him on the brief was Fred N. Howser, Attorney General. Mr. Justice Black delivered the opinion of the Court. The petitioner is under sentence of death for murder in the first degree imposed by a California superior court and affirmed by the State Supreme Court. 28 Cal. 2d 671, 171 P. 2d 428. The validity of that sentence is not here challenged. But § 1367 of the California Penal Code provides that “A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.’.’ Thus if petitioner is insane, California law prohibits his execution under the death sentence which he received. The legal questions here presented relate to the procedures adopted by California to determine whether petitioner is sane or insane as a matter of fact. It is petitioner’s contention that, though having been pronounced insane in a judicial proceeding after his conviction, and though he in fact is still insane, he is about to be executed because a state doctor, acting under authority of state statutes, has declared him restored to sanity. The doctor reached his determination without notice or hearings, and without any opportunity on petitioner’s part to obtain an original court hearing and adjudication of his sanity, or even to obtain a court review of the doctor’s conclusion that he is sane. This procedure it is argued constitutes a denial to petitioner of that due process of law guaranteed him by the Fourteenth Amendment. This contention was urged upon the California Supreme Court in habeas corpus proceedings there instituted. That court entertained and considered the petition, but, with two judges dissenting, denied relief, sustaining the validity of the power of the state’s executive agents to follow the prescribed statutory procedures. 30 Cal. 2d 838, 186 P. 2d 134. We granted certiorari because of the serious nature of the due process contentions presented in the petition. 333 U. S. 841. Here the California attorney general, while supporting the State Supreme Court’s denial of habeas corpus, asserts that California affords petitioner an adequate judicial remedy by way of mandamus, a procedure which has not yet been sought by petitioner. The California procedure may perhaps be better understood by explaining the application of the controlling California statutes to petitioner’s case. While he was in prison awaiting execution of the death sentence a question arose concerning the petitioner’s sanity at that time. Section 3701 of the State Penal Code prescribes that if “there is good reason to believe” that a defendant under sentence of death “has become insane, the warden must call such fact to the attention of the district attorney.” It is the district attorney’s “duty” immediately to institute proceedings in an appropriate trial court to determine the sanity of the defendant, and the court “must at once” summon a jury of twelve to “hear such inquiry.” In petitioner’s case this prescribed course was followed, a judicial hearing was held as provided by § 3702, and petitioner was adjudged insane. In accordance with § 3703 the court then ordered that petitioner “be taken to a state hospital for the insane and be there kept in safe confinement until his reason is restored.” It will be noted that the petitioner obtained a judicial hearing as to sanity only because the warden instituted proceedings after determining that there was “good reason to believe” that the petitioner was insane. Thus, the opportunity for a person under sentence of death to have a hearing before judge and jury on the question of his sanity depends in the first instance solely on the warden. After adjudication of insanity the petitioner was taken to a state hospital for the insane in compliance with the trial court’s order of commitment. In accordance with § 3704 the warden then suspended the death sentence and delivered certified copies of the court’s order to the governor and to the medical superintendent of the state hospital to which petitioner was sent. As § 3704 provides, the superintendent was directed that when petitioner “recovers his reason,” the superintendent “must certify that fact” to the governor, who is then required to issue to the warden his warrant appointing a day for the execution of the judgment. The warden then returns the defendant to the state prison pending the execution of the judgment. This course was followed with reference to the petitioner. Eighteen days after his admission to the state hospital the medical superintendent certified to the governor that the petitioner was then sane. He was returned to the custody of the prison warden, and the governor set a new date for his execution. The medical superintendent’s determination of petitioner’s sanity was based on his own ex 'parte investigation, no notice or hearings having been afforded petitioner or any person on his behalf. It is thus clear that the California statutory scheme here challenged provides neither an administrative nor a judicial hearing as a prerequisite to a determination that a condemned defendant judicially adjudicated to be insane has been restored to sanity; one man in an ex parte investigation decides the question upon which hangs the defendant’s life, in the absence of a later request by the prison warden for a judicial hearing on the ground that there is then “reason to believe” the defendant has become insane. The holding of the State Supreme Court in the habeas corpus proceeding was: “There is no authority ... for the proposition that defendant has a right to habeas corpus or other judicial proceeding to determine the question of his sanity after his release from the state hospital. In fact, section 3700 of the Penal Code expressly prohibits such a proceeding. Once the superintendent certifies that defendant is sane, he is remanded to the custody of the warden for execution and ‘No judge, court or other officer other than the Governor’ can then suspend the execution of the judgment, ‘except the warden of the State Prison to whom he is delivered. . . .’ ” In re Phyle, 30 Cal. 2d at 842-843, 186 P. 2d at 137. For the statements in its opinion that the due process clause of the Fourteenth Amendment conferred no right on a condemned defendant to any kind of judicial adjudication or review on the question of sanity, the State Supreme Court primarily relied on Nobles v. Georgia, 168 U. S. 398. We do not think that either the actual holding or what was said in the opinion in that case would necessarily require a rejection of the contentions made here against the California procedures. The Georgia law under scrutiny in the Nobles case provided that the sanity of a person previously condemned to death should be determined by a tribunal formed in the following manner: “The sheriff of the county, with the concurrence and assistance of the Ordinary thereof, [emphasis added] shall summon a jury of twelve men to inquire into such insanity . . . .” If this tribunal found insanity the sheriff was required to suspend execution of sentence and report his actioñ to the presiding judge. Restoration of sanity so as to justify execution was to be determined by the presiding judge “by inquisition or otherwise.” Thus “the only question” in the Nobles case, as the Court there said, was “whether ... in order to constitute due process of law” the question of insanity of a condemned defendant must “be tried by a jury in a judicial proceeding surrounded by all the safeguards and requirements of a common law jury trial, and even although by the state law full and adequate administrative and quasi judicial process is created for the purpose of investigating the suggestion.” P. 405. This agency for a hearing to inquire into the prisoner’s sanity, composed as it was of sheriff, county judge and jury, was referred to as an “apt and special tribunal.” There is provision in the California statutes for a hearing before a judge and jury when, but only when, the warden is of opinion that there “is reason to believe” a defendant is insane. The Nobles case does stand for the proposition that a condemned defendant has no “absolute right” to a hearing on the question of his sanity on his mere “suggestion.” Such an absolute right, this Court thought, would make the punishment of a defendant “depend solely upon his fecundity in making suggestion after suggestion of insanity, to be followed by trial upon trial.” P. 406. For this reason, the Court in the Nobles opinion cited and quoted from legal commentators and from judicial opinions which emphasized, as the opinion in the Nobles case itself emphasized, the importance of leaving to the “discretion of a judge” the most appropriate procedure for determining the sanity of a defendant already sentenced to death. It was in this connection that the Court made the statement in the Nobles case upon which the California Supreme Court particularly relied, that “the manner in which such question should be determined was purely a matter of legislative regulation.” Reading this statement in its,context and in relation to the Georgia procedure, we do not understand that the Court in the Nobles case passed upon the question here urged: whether a state which bars the execution of insane persons can submit to a single individual this question, crucial to life, to be decided by that individual ex parte, with or without notice and hearings as the individual may choose, and without any judicial supervision, control or review whatever. The Nobles case we do understand to be an authority for the principle that a condemned defendant cannot automatically block execution by suggestions of insanity, and that a state tribunal, particularly a judge, must be left free to exercise a reasonable discretion in determining whether the facts warrant a full inquiry and hearing upon the sanity of a person sentenced to death. What has been said previously indicates the gravity of the questions here raised under the due process clause as heretofore construed by this Court, both the contention that execution of an insane man is offensive to the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, Adamson v. California, 332 U. S. 46; Carter v. Illinois, 329 U. S. 173, and the different contention that life shall not be taken by a state as the result of the unreviewable ex parte determination of a crucial fact made by a single executive officer. See Ng Fung Ho v. White, 259 U. S. 276. It is not appropriate for us to pass on such constitutional questions in this habeas corpus case if, as the California attorney general contends, there is a state remedy by mandamus available to petitioner under which he can invoke judicial action to compel the warden to initiate judicial proceedings, and in which mandamus proceedings the court will hear and consider evidence to determine whether there is “reason to believe” that the petitioner is insane. New York ex rel. Whitman v. Wilson, Warden, 318 U. S. 688; Woods v. Nierstheimer, 328 U. S. 211; Carter v. Illinois, 329 U. S. 173. See also Simon v. Craft, 182 U. S. 427, 437. The State Supreme Court in denying habeas corpus said that the state statutes made “no provision for a judicial determination of the question of the sanity of a defendant delivered to the warden of a state prison for execution except as set forth in” § 3701. That is the section which requires a judicial inquiry with a court and jury only when and if the warden certifies that “there is good reason to believe” that a person sentenced to death has “become insane.” But it does not necessarily follow from the fact that petitioner cannot obtain a full-fledged judicial hearing as to sanity on his own motion made directly to a state court that he is without some other adequate state remedy. And the state attorney general asserts here that the petitioner does have an “ample remedy, if the facts support him, by application to the California courts for a writ of mandamus” to compel the warden to institute proceedings under § 3701. Thus we have an unequivocal declaration by the state attorney general that petitioner has not attempted to take advantage of an available state remedy. The attorney general is the highest non-judicial legal officer of California, and is particularly charged with the duty of supervising administration of the criminal laws. His statement on this question is entitled to great weight in the absence of controlling state statutes and court decisions. Nor is there anything in the State Supreme Court’s opinion in this case that need be considered in conflict with the attorney general’s opinion. While that court held that there was no statutory provision for petitioner to obtain a sanity hearing except through action by the warden as prescribed in § 3701, it did not hold or even consider whether there was judicial power under state law to compel the warden to do his duty under § 3701. It did declare, clearly and emphatically, that the statute imposed a mandatory obligation on the warden to initiate judicial proceedings if there was good reason to believe a condemned defendant insane, an obligation that continued to rest upon the warden even after certification of restoration to sanity by the medical superintendent. The Supreme Court also declared that this duty would continue up to the very time of execution. Failure of the warden to perform this obligation, so the court said, would be a “violation of . . . section 1367,” which section prohibits execution of an insane man. In view of this mandatory obligation upon the warden to initiate proceedings if “there is good reason to believe” a defendant sentenced to death is insane, it would be somewhat anomalous, to say the least, if California courts were wholly without power to correct an executive agent’s abuse of authority in a matter of such great significance as the execution of insane persons. The jurisdiction of California courts to issue mandamus has its source in Art. VI, §§ 4, 4b, 5 of the state constitution. The writ can issue to any inferior tribunal or person to compel an act which the law specifically enjoins. Code of Civil Procedure of California, § 1085. It has been held that the writ may issue against the secretary of state, Hutchinson v. Brown, 122 Cal. 189, 54 P. 738, or even against the governor. Elliott v. Pardee, Governor, 149 Cal. 516, 520, 86 P. 1087, 1089. Petitioner contends, however, that mandamus would not be available under California law if there is another adequate remedy, see Kahn v. Smith, 23 Cal. 2d 12, 142 P. 2d 13, that here habeas corpus is available, and hence mandamus is not. This contention is fully answered by the State Supreme Court’s opinion in this case, holding that neither habeas corpus nor any other remedy is available to test sanity of a condemned defendant, except that remedy under § 3701 which only the warden can institute. Hence, so far as it here appears, mandamus to compel action by the warden is the only available remedy. Petitioner contends that this remedy is inadequate because under California law no relief could be hoped for in a mandamus proceeding without a showing that the warden’s non-action was arbitrary and capricious. We cannot know, of course, just what precise standards the State Supreme Court may hold must be met by petitioner in order to obtain the judicial inquiry provided in § 3701. We are persuaded by the attorney general’s statements and brief, and by the state constitution, state statutes, and state decisions to which he referred, that mandamus is probably available, and that in a mandamus proceeding some issues of fact concerning petitioner’s sanity can be drawn by the parties, resolved by the courts, and provide support for relief. Different language has been used in different opinions concerning the conditions upon which the writ will issue in California. Although it has been said that generally the writ will issue only to correct an abuse of discretion, Bank of Italy v. Johnson, 200 Cal. 1, 31-33, 251 P. 784, 795-796 and cases cited, it has also been pointed out that in some circumstances writs can issue to compel action in a particular way. Wood v. Strother, 76 Cal. 545, 549, 18 P. 766, 769; Landsborough v. Kelly, 1 Cal. 2d 739, 744, 37 P. 2d 93, 95. In considering what the issues may be in a mandamus proceeding, it must be borne in mind that the warden is under a mandatory duty to initiate judicial proceedings, not when a defendant is insane, but when “there is good reason to believe” he is insane. We cannot say at this time that California’s remedy by mandamus will be less than a substantial equivalent of one which authorized him to apply directly to a court for a full hearing. For this Court held in Nobles v. Georgia, supra, that in the absence of sufficient reasons for holding a full hearing into the sanity of a defendant sentenced to death, a state judge may deny such a hearing consistently with due process. As previously pointed out, the decision in the Nobles case emphasized that due process of law had never necessarily envisioned a full court hearing every time the insanity of a condemned defendant was suggested. Applications for inquiries into sanity made by a defendant sentenced to death, unsupported by facts, and buttressed by no good reasons for believing that the defendant has lost his sanity, cannot, with any appropriate regard for society and for the judicial process, call for the delays in execution incident to full judicial inquiry. And a court can just as satisfactorily determine by mandamus as by direct application whether there are good reasons to have a full-fledged judicial inquiry into a defendant’s sanity. In this situation we find no federal constitutional question presented which is ripe for decision here. So here, as in Woods v. Nierstheimer, supra, being unable to say that the judgment denying habeas corpus may not rest on an adequate non-federal ground, the writ of certio-rari is Dismissed. The opinion of the State Supreme Court affirming petitioner’s sentence shows: Upon arraignment in the Superior Court counsel was appointed for petitioner at his request. His pleas were “Not guilty” and “Not guilty by reason of insanity.” Later petitioner informed his counsel that he wished to withdraw these pleas and enter a plea of guilty. The trial judge then examined petitioner at length, satisfied himself that the change of plea was voluntarily entered by petitioner with full knowledge of his legal rights, and then accepted it. Evidence was then taken by the court to determine the degree of the murder and to fix the punishment. Two physicians appointed by the court testified that in their judgment petitioner was sane. Other witnesses testified to the facts of the crime. The murder was committed by petitioner while he was in the act of perpetrating a robbery. During the entire proceedings, so the State Supreme Court found from the record, the appointed counsel participated and represented petitioner “with fidelity and proficiency.” People v. Phyle, 28 Cal. 2d 671, 171 P. 2d 428. “3701. Insanity of defendant, how determined. If, after his delivery to the warden for execution, there is good reason to believe that a defendant, under judgment of death, has become insane, the warden must call such fact to the attention of the district attorney of the county in which the prison is situated, whose duty it is to immediately file in the superior court of such county a petition, stating the conviction and judgment, and the fact that the defendant is believed to be insane, and asking that the question of his sanity be inquired into. Thereupon the court must at once cause to be summoned and impaneled, from the regular jury list of the county, a jury of twelve persons to hear such inquiry.” “3702. Duty of district attorney upon hearing. The district attorney must attend the hearing, and may produce witnesses before the jury, for which purpose he may issue process in the same manner as for witnesses to attend before the grand jury, and disobedience thereto may be punished in like manner as disobedience to process issued by the court.” “3703. Convict found insane. The verdict of the jury must be entered upon the minutes, and thereupon the court must make and cause to be entered an order reciting the fact of such inquiry and the result thereof, and when it is found that the Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_initiate	B	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. Monte W. DURHAM, Appellant, v. UNITED STATES of America, Appellee. No. 12810. United States Court of Appeals District of Columbia Circuit. Argued Jan. 17, 1956. Decided March 29, 1956. Petition for Rehearing In Banc Denied May 3, 1956. Mr. Milton M. Gottesman, Washing-, ton, D. C., with whom Mr. William E. Leahy, Washington, D. C. (both appointed by this Court) was on the brief, for appellant. Mr. Lewis A. Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Arthur J. McLaughlin and John W. Kern, III, Asst. U. S. Attys., were on the brief, for appellee. Mr. Carl W. Belcher, Asst. U. S. Atty., also entered an appearance for appellee. Before EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit Judges. BAZELON, Circuit Judge. On Durham’s former appeal, we reversed his conviction of housebreaking and remanded the case for a new trial because the trial court had erroneously applied “existing rules governing the burden of proof on the defense of insanity * * In addition, we announced a new test of criminal responsibility. Upon re-trial, Durham has again been convicted. We must again reverse and remand for a new trial because of fatally defective instructions to the jury. The judge told the jury that the Acting Superintendent of St. Elizabeths Hospital had advised the court on February 12, 1953 that Durham was found competent to stand trial and assist in his own defense. Later, after correctly stating that he would commit Durham to St. Elizabeths if he were found not guilty by reason of insanity, the judge added that Durham would remain there until determined to be “of sound mind” by the hospital authorities; and that “if the authorities adhere to their last opinion on this point, he will be released very shortly.” Thus the judge conveyed to the jury the idea, which he also expressed at a bench conference with counsel, that the authorities had found Durham to be “of sound mind” and that he would be discharged “very shortly” after commitment unless their opinion changed. This was plain error. The “last opinion” referred to by the court was apparently the February 12, 1953 letter of Dr. Silk, Acting Superintendent of St. Elizabeths, regarding Durham’s competency to stand trial. This letter was not in evidence.» Nor could it have been. The “fair meaning” of § 4244 of Title 18 U.S.C. is that “the jury should not be told that the accused has been found competent to stand trial.” Hence the court erred in calling the jury’s attention to the letter. But there is an even more critical fault. Competency to stand trial is entirely different from such soundness of mind as would warrant discharge from the hospital. A striking illustration of the difference is found in this very ease in these word's from Dr. Silk’s letter: “Prolonged psychiatric study has established that [Durham] suffers from psychological illness but is mentally competent to stand trial and is able to consult with counsel to properly assist in his own defense.” (Emphasis supplied.) This court recognized in Durham’s former appeal that a defendant who is competent to stand trial may nevertheless be suffering from a mental illness presenting dangers against which protection is necessary. We specifically pointed out that upon acquittal by reason of insanity the defendant “may be confined as long as ‘the public safety and * * * (his) welfare’ require.” This is what the judge should have told the jury hjere. The judge’s statement that the defendant would “be released very shortly” was highly prejudicial, for it implied a warning that dire consequences might result from a finding that the defendant was not guilty by reason of insanity. Such a warning goes far to deprive the insanity defense of any real meaning as a jury issue. The judge’s statement that such a warning is justified by our decision in Taylor v. United States, supra, note 5, is erroneous. Reversed and remanded for a new trial. . Durham v. United States, 1954, 94 U.S.App.D.C. 228, 230, 214 F.2d 862, 864, 45 A.L.R.2d 1430. . We allowed Durham leave to proceed in forma pauperis after the District Court had denied such leave in a memorandum opinion, D.C.D.C.1955, 130 F.Supp. 445. . Later the trial judge repeated this statement and added a sentence which did not change the total effect of what he had previously said. . “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Rule 52(b), Fed.Rules Crim.Proc, 18 U.S.C.A. Stewart v. United States, 1954, 94 U.S.App.D.C. 293, 296, 214 F.2d 879, 882, note 7; Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404. . Taylor v. United States, 95 U.S.App.D.C. at page 378, 222 F.2d at page 403. Section 4244 provides in pertinent part: “A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.” 63 Stat. 686 (1949). . See Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 246, 215 F.2d 493, 496; Sobeloff, Insanity and the Criminal Law: From McNaghten to Durham and Beyond, 41 A.B.A.J. 793, 879 (1955). For example, although persons suffering from pyromania or kleptomania may be competent to stand trial, their affliction may make them dangerous to themselves or others. In an early Texas case, Harris v. State, 1885, 18 Tex.App. 287, 293, kleptomania was described as “a species of insanity” constituting a defense to the crime of theft. Pyromania and kleptomania have been described as psychoneuroses in Guttmacher & Weihofen, Psychiatry and the Law 57 (1952), and as psychopathic states in Henderson & Gillespie, Textbook of Psychiatry 399 (7th ed. 1953). . Note 57, 94 U.S.App.D.C. at page 242, 214 F.2d at page 876, citing Barry v. White, 1933, 62 App.D.C. 69, 71, 64 F.2d 707, 709. See also Sobeloff, supra, note 6. . Taylor v. United States, 95 U.S.App.D.C. at page 379, 222 F.2d at page 404. The jury should now be advised in accordance with Public Law No. 313, 84th Cong., 1st Sess., Aug. 9, 1955. That law, which amends D.C.Code, § 24-301, was enacted after the trial herein and our decision in Taylor. In pertinent part, it provides for mandatory commitment to a mental hospital of a person acquitted by reason of insanity, and conditions release on, inter alia, the opinion of the hospital superintendent that “such person will not in the reasonable future be dangerous to himself or others * * 69 Stat. 610. . See Annotation, 44 A.L.R.2d 973, State v. Johnson, Mo.1954, 267 S.W.2d 642, 44 A.L.R.2d 973. . This statement appears in the trial judge’s memorandum opinion denying Durham’s motion for leave to appeal in forma pauperis. 130 F.Supp. at page 448. 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_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. AIR TRANSPORT ASSOCIATION OF AMERICA, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. No. 83-1174. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 1, 1983. Decided April 20, 1984. Harper B. Atherton, with whom David R. Murchison, Washington, D.C., was on the brief, for petitioner. David Schaffer, Atty., C.A.B., Washington, D.C., with whom Ivars V. Mellups, Acting Gen. Counsel, and Thomas L. Ray, Asst. Gen. Counsel, C.A.B., and John P. Powers, III, and Frederic Freilicher, Attys., U.S. Dept, of Justice, Washington, D.C., were on the brief, for respondent. Before TAMM and SCALIA, Circuit Judges, and LUTHER M. SWYGERT, Senior Circuit Judge for the Seventh Circuit. Opinion for the court filed by Circuit Judge TAMM. Sitting by designation pursuant to 28 U.S.C. § 294(d) (1976). TAMM, Circuit Judge: Petitioner, Air Transport Association of America, seeks review of Civil Aeronautics Board (Board) order OR-204, 48 Fed.Reg. 635 (1983). The order revised the Board’s filing fee schedule and adopted a refund policy for excess fees collected after 1977. Petitioner challenges the order on procedural and substantive grounds. Although the Board’s order is proeedurally sound, we find that its refund policy has an unlawful retroactive effect. Accordingly, we remand this case to the Board for proceedings consistent with this opinion. I. Background A. Statutory Framework Petitioner’s challenges are directed at the Board’s establishment of fees pursuant to the Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 483a (1976)'. The IOAA confers on agencies the authority to assess fees for services rendered to members of regulated industries. Congress enacted the IOAA so that services provided by agencies would become self-sustaining to the fullest extent possible. Id. In prescribing fees, agencies are instructed to consider “direct and indirect cost to the Government, value to the recipient, public policy or interest served,’ and other pertinent facts____” Id. In 1974, the Supreme Court narrowly construed agencies’ authority under the IOAA to charge fees. In two companion cases, the Court found that the fee schedules being challenged were overbroad and therefore constituted taxes, which generally may be levied only by Congress. Federal Power Comm’n v. New England Power Co., 415 U.S. 345, 94 S.Ct. 1151, 39 L.Ed.2d 383 (1974); National Cable Television Ass’n v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974) [hereinafter cited as NCTA]. The Court stated that permissible fees under the IOAA included “only specific charges for specific services to specific individuals or companies.” New England Power Co., 415 U.S. at 349, 94 S.Ct. at 1154. The decisions in NCTA and New England Power Co. prompted challenges to other agency fee schedules. As a result, this court in 1976 articulated specific standards to which agencies must adhere when calculating fee schedules: First, the [agency] must justify the assessment of a fee by a clear statement of the particular service or benefit which it is expected to reimburse. Second, it must calculate the cost basis for each fee assessed____ Finally, the [agency] must set a fee calculated to return this cost basis at a rate which reasonably reflects the cost of the services performed and value conferred upon the payor. The fees may be imposed only on beneficiaries of agency services who satisfy the criteria of NCTA and New England Power. Electronic Industries Ass’n v. FCC, 554 F.2d 1109, 1117 (D.C.Cir.1976). See also National Ass’n of Broadcasters v. FCC, 554 F.2d 1118, 1133 (D.C.Cir.1976). These standards established the criteria against which agencies could measure the legality of fees assessed pursuant to the IOAA. B. Procedural Background 1. The Board’s Fee Schedules from 1968 to 1982 The Board first established filing fees and license fees in 1968. See OR-27, 33 Fed.Reg. 68 (1968), Joint Appendix (J.A.) at 43. The Board intended these fees to recover about one-fourth of the direct costs the Board incurred in providing specific services to specific individuals. J.A. at 46. This assessment, according to the Board, represented reasonable fees under the IOAA. J.A. at 45, 46. Although the method used by the Board in calculating these fee schedules did not conform to IOAA guidelines, see infra note 8, no carrier filed a petition for review. In 1973, the Board revised the 1968 fee schedule because the fees collected pursuant to the old schedule no longer covered one-fourth of the Board’s direct costs. See OR-80, 38 Fed.Reg. 31960 (1973), J.A. at 82. The method used by the Board in calculating the revised fees was substantially the same as that used in calculating the 1968 fees. J.A. at 68, 82. Once again, even though the fee schedules did not conform to IOAA guidelines, no carrier filed a petition for review. In March 1977, the Department of Justice petitioned the Board to reexamine its license fee schedule on the ground that the license fees constituted an unlawful tax. Petition for Rulemaking, Docket 30586 (Mar. 7, 1977), J.A. at 99. On April 8, 1977, the Board suspended the collection of license fees pending an analysis of their lawfulness. Order 77-4-42, Docket 30586 (Apr. 8, 1977), J.A. at 110-11. The Board did not, however, suspend the collection of filing fees or alter the filing fee schedule. On April 28, 1977, six charter air carriers petitioned the Board to suspend the payment of filing fees and to refund all license and filing fees paid since 1968. Petition of Certain Supplemental Air Carriers for Refund of All License and Filing Fees, Docket 30816 (Apr. 28, 1977), J.A. at 113. The petition alleged that the Board’s entire fee schedule, both for license and filing fees, imposed unlawful taxes. The Board took no apparent action in response to this petition until 1982 when it commenced the rule-making proceeding for OR-204. 2. The Rulemaking Proceeding for OR-204 a. Notice of Proposed Rulemaking On February 1, 1982, the Board issued a notice of proposed rulemaking in which it proposed to revise the filing fee schedule, to eliminate license fees, and to deny refunds for fees paid pursuant to the earlier fee schedules. ODR-25, 47 Fed.Reg. 7746 (1982), J.A. at 137. The Board stated that its proposed filing fee schedule complied with the IOAA as interpreted both by the Supreme Court and this court. Although the Board conceded that the method it had used to calculate its previous fee schedules had not conformed to IOAA guidelines, the Board nevertheless proposed to deny the air carriers’ request for a refund of fees paid' since 1968. In support of its position, the Board observed that this court had required another agency whose fee schedule had been improperly calculated to refund fees only to the extent that they exceeded the amounts that lawfully could have been charged. J.A. at 147 (citing National Ass’n of Broadcasters v. FCC, 554 F.2d 1118 (D.C.Cir.1976)). Because the Board had attempted in its earlier fee schedules to recover only one-fourth of its direct costs and had not even assessed fees for indirect costs, the Board decided that refunds probably would not be necessary. J.A. at 147. b. The Final Rule On January 6, 1983, the Board adopted the final rule, OR-204, 48 Fed.Reg. 635 (1983), J.A. at 240. Pursuant to this rule, the Board established a new filing fee schedule. Additionally, the Board found that laches barred refunds of fees paid before April 28, 1977, the date on which carriers first petitioned the Board to refund all fees. J.A. at 258. Finally, contrary to its proposal in the notice, the Board allowed refunds for filing fees paid after April 28, 1977 to the extent that the total fees paid during any calendar year exceeded the amount that the Board legally could have assessed for that year. J.A. at 257. The Board recalculated the fees that legally could have been assessed according to the current, revised formula it used in calculating the new fee schedule. J.A. at 260. The recalculated fees were based on 1977 costs and current processing times, both of which favored the carriers. The following refund procedure was then used: [A carrier’s refund] application is to state the specific fee for which a refund is asked, the amount paid, and the total amount paid by the carrier in that calendar year for all fees. The comptroller ... will review the application, offsetting any amounts overpaid by amounts underpaid, based on the recalculation of the fees as discussed above. J.A. at 262. The new rule became effective on January 10, 1983, four days after publication in the Federal Register. J.A. at 262. Petitioner, Air Transport Association of America, challenges procedural and substantive aspects of the Board’s final order. Specifically, petitioner raises the following three challenges: 1) the Board failed to comply with the Administrative Procedure Act in adopting OR-204; 2) the Board erred in relying on the doctrine of laches for denying refunds of fees paid between 1968 and 1977; and 3) the Board’s refund policy for fees paid since 1977 has an unlawful retroactive effect. We address these claims in turn. II. Analysis A. Petitioner’s Procedural Challenges to OR-m Petitioner first asserts that the Board denied the public the opportunity to make meaningful comments on OR-204 in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1982). Some of the processing times used to calculate the new fee schedule were based on internal staff studies that were not made available to the public for review and comment prior to the rule’s adoption. Petitioner contends that the Board’s failure to make these staff studies available prior to adoption of the final rule renders the rule invalid. The genesis of these staff studies was a joint memorandum from the Board’s General Counsel and Managing Director to the Board’s Bureau and Office Directors. This memorandum, issued some nine months after the notice of proposed rulemaking, was prompted by public comments that had “strongly challenged” calculations relating to the proposed fee schedule. J.A. at 386. The memorandum instructed each director to update with “accurate and justifiable” figures the time typically spent in processing particular documents and the grade range of the staff members performing the work. J.A. at 386. The resultant staff studies revealed that some data required correcting and, accordingly, some fees in the final rule were either higher or lower than those proposed in the notice. The staff studies were placed in the public docket at the close of rulemaking. J.A. at 248-53. Notwithstanding these staff studies, we find that the Board’s notice complied with the APA. The APA requires that an agency set forth in its notice of proposed rule-making “either the terms or substance ... or a description of the subjects and issues involved” in the proposed rule. 5 U.S.C. § 553(b)(3). Thereafter, the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments....” 5 U.S.C. § 553(c). We believe the Board's notice was “sufficiently descriptive of the ‘subjects and issues involved’ so that interested parties [could] offer informed criticism and comments.” National Small Shipments Traffic Conference, Inc. v. CAB, 618 F.2d 819, 834 (D.C.Cir.1980) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 48 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 (1976)). In its notice, the Board both outlined the method by which it proposed to calculate the fees and listed the types of fees it proposed to charge. J.A. at 143-44. These critical elements of the proposal did not change, and the final rule was a “logical outgrowth” of the proposed rule. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C.Cir.1983). Contrary to petitioner’s argument, the statutory duty to submit a proposed rule for comment does not include an obligation to provide new opportunities for comment whenever the final rule differs from the proposed rule. As this court stated in Connecticut Light and Power Co. v. NRC, 673 F.2d 525, 533 (D.C.Cir.1982): An agency adopting final rules that differ from its proposed rules is required to renotice when the changes are so major that the original notice did not adequately frame the subjects for discussion____ The agency need not renotice changes that follow logically from or that reasonably develop the rules it proposed originally. Otherwise, the comment period would be a perpetual exercise rather than a genuine interchange resulting in improved rules. See also Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1031 (D.C.Cir.1978); Action for Children’s Television v. FCC, 564 F.2d 458, 470 (D.C.Cir.1977). Petitioner also argues that the Board’s notice was inadequate because the Board (1) failed to identify the method by which it intended to calculate the processing times, and (2) did not indicate that it intended to make findings as to the beneficiaries of its services. Again, however, we find that the notice adequately framed the subjects. The notice outlined the path that each document followed until final action. J.A. at 143, 154-56. The notice explained that each bureau determined the average processing time required for each step in the document’s path, broken down by employee-hours. J.A. at 143. Each processing time was explicitly listed in the notice. J.A. at 144, 154-56. The notice also stated that fees would be charged only for services with a known beneficiary; services for which the beneficiary was obscure or that conferred an independent public benefit were excluded. J.A. at 138. Moreover, each document for which the Board proposed to charge fees was listed in the notice. J.A. at 150-51, 154-56. After considering the notice in its entirety, we find that the Board’s discussion of the disputed subjects fulfilled its obligation “to make its views known to the public in a concrete and focused form so as to make criticism or formulation of alternatives possible.” Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89, petition for reh’g denied, 434 U.S. 988, 98 S.Ct. 621, 54 L.Ed.2d 484 (1977). Finally, petitioner contends that the rule should be invalidated because the Board lacked good cause to make the filing fee schedule effective four days after publication. See 5 U.S.C. § 553(d) (publication of a rule shall be made not less than thirty days before its effective date except for good cause found and published with the rule). Although exceptions to the thirty-day requirement are “narrowly construed and only reluctantly countenanced,” American Federation of Gov’t Employees v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981) (quoting New Jersey Dep’t of Environmental Protection v. EPA, 626 F.2d 1038, 1045 (D.C.Cir.1980)), we agree with the Board that good cause existed for hastening the effectiveness of this rule. Because the new fee schedule reduced many fees, J.A. at 150-51, 265-66, the Board properly expedited the date of the rule’s effectiveness “[s]o that no person [would] be disadvantaged or treated discriminatorily, and so that accurate fees [could] be paid ____” J.A. at 262. See generally Capital Cities Communications v. FCC, 554 F.2d 1135, 1139 (D.C.Cir.1976). B. Refunds of Fees Assessed Pursuant to Earlier Fee Schedules 1. Laches as a Ground for Barring Refunds for Fees Assessed Before 1977 Petitioner attacks the Board’s reliance on the doctrine of laches in denying refunds of fees assessed from 1968 to 1977. Tq establish laches, the Board must show that the carriers’ delay in challenging the fee schedules and in asserting refund claims was unreasonable, and that such delay prejudiced the Board. Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C.Cir.1982). Contrary to petitioner’s assertions, we find that the Board met this burden. Petitioner first argues that it cannot be accused of unreasonable delay, because its petition for refunds in April 1977 followed only four months after this court articulated the standards by which fees could lawfully be assessed under the IOAA. See supra note 3. Petitioner ignores, however, that its claim came nine years after the Board adopted the fee schedules, four years after the Board increased the fees pursuant to a rulemaking procedure, and three years after the Supreme Court narrowly construed the IOAA in National Cable Television Ass’n v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974), and Federal Power Comm’n v. New England Power Co., 415 U.S. 345, 94 S.Ct. 1151, 39 L.Ed.2d 383 (1974). We believe that petitioner has not adequately explained this delay in challenging the Board’s fee schedule. Petitioner is equally unsuccessful in arguing that the Board was not prejudiced by the industry’s delay. Due to the industry’s lack of diligence in challenging the fee schedules before 1977, records are not available from which the Board could now accurately recalculate fees that it could have collected. J.A. at 259. The Board therefore would be denied its right to retain the maximum portion of fees collected before 1977 that would be permissible under the IOAA. National Ass’n of Broadcasters v. FCC, 554 F.2d 1118, 1133 (D.C.Cir.1976). To require the Board to distribute imprecise refunds based on aged, inadequate records would result in the type of prejudice that the doctrine of laches is designed to prevent. See generally Galliher v. Cadwell, 145 U.S. 368, 12 S.Ct. 873, 36 L.Ed. 738 (1892). 2. Refund Policy for Fees Assessed After 1977 Finally, petitioner urges us to find unlawful the Board’s refund policy for fees assessed after 1977. Pursuant to this policy, the Board recalculated the fees it could have charged since 1977 according to the same formula it used to calculate the current fee schedule, but with times and costs that favored the industry. See supra note 10. An air carrier seeking a refund must state both the specific fee for which a refund is asked and the total fees it paid during the calendar year of the payment in question. The Board “offsets” the total fees that the carrier paid during that calendar year against the recalculated fees that the Board could have charged. A carrier is entitled to a refund only to the extent that the total fees it paid during a calendar year exceeded the total amount the Board could have assessed. Petitioner argues that the Board’s “offsetting” refund procedure in some cases has the unlawful effect of raising fees retroactively. We agree. The Board contends that its refund policy conforms to the approach approved by this court in National Ass’n of Broadcasters v. FCC, 554 F.2d 1118 (D.C.Cir.1976). There, this court rejected the argument that all fees collected under a fee schedule not calculated in accordance with the IOAA should be refunded: [The] congressional mandate, expressed in IOAA, [is] that government agencies should become, through the assessment of appropriate fees, “self sustaining to the full extent possible.” 31 U.S.C. § 483a (1970) (emphasis added). It is our interpretation of this mandate that the Commission should retain the maximum portion of the fees collected that would be permissible under the principles announced in NCTA, New England Power, and the statute. What proportion that is, we do not know; so we remand this case to the agency with instructions that it initiate proceedings to recalculate the 1970 fee schedule in accordance with the “value to recipient” standard laid down in NCTA Having calculated a proper fee under these guidelines, the Commission should refund that portion of the money which was collected in excess thereof. Id. at 1133. The Board stresses that its “offsetting” refund procedure will not be used to obtain more money than carriers already have paid; it will be used only to limit the refunds. The Board therefore contends that its refund policy serves to “retain the maximum portion of the fees collected that would be permissible under the ... [IOAA].” Id. Contrary to the Board’s contention, the refund procedure outlined in National Ass’n of Broadcasters differs significantly from the Board’s procedure. In National Ass’n of Broadcasters, the agency was instructed to refund fees on an individual basis. Id. (“Having calculated a proper fee ..., the Commission should refund that portion of the money which was collected in excess thereof.”). By contrast, the Board’s “offsetting” procedure refunds fees, if at all, only on a cumulative basis. That these two procedures operate differently is demonstrated by the following example. Assume that a refund applicant paid two fees during the year, the first which was unlawfully high and the second which could lawfully have been higher. Under the procedure in National Ass’n of Broadcasters, the applicant would be entitled to a refund for having been overcharged on the first fee and would have no obligation to pay an additional amount for the second fee. Under the Board’s “offsetting” procedure, however, if the overcharge on the' first fee was less than the undercharge on the second fee, the applicant would receive nothing. The Board’s procedure in effect retroactively raises the second fee and collects at least a portion of this retroactive increase by withholding the refund owed for the overcharge on the first fee. This the Board cannot do. It is clear, in the above example, that if no issue were presented as to the first fee, the Board could not obtain more money by retroactively raising the second fee. See National Ass’n of Broadcasters, 554 F.2d at 1133 n. 42. See generally Arizona Grocery Co. v. Atchison Ry., 284 U.S. 370, 389, 52 S.Ct. 183, 186, 76 L.Ed. 348 (1932). We hold that the Board may not reach the same result indirectly by nullifying and retaining a refund to which a carrier is entitled. Accordingly, we remand this case to the Board with instructions to modify its refund procedure for post-1977 fee assessments to eliminate the unlawful retroactive effect. The Board should retain the maximum portion of each fee collected that would be permissible under the IOAA. The Board may not, however, annul a specific overpayment by the cumulative “offsetting” approach. III. Conclusion For the foregoing reasons, we remand this case to the Board for proceedings consistent with this opinion. It is so ordered. . Petitioner also seeks review of the following orders, all of which relate to OR-204: ER-1318, 48 Fed.Reg. 3717 (1983); ER-1317, 48 Fed.Reg. 3717 (1983); OR-206, 48 Fed.Reg. 1941 (1983); OR-205, 48 Fed.Reg. 404 (1983). . By contrast, Congress, when levying taxes, may "disregard benefits bestowed by the Government on a taxpayer and go solely on ability to pay, based on property or income.” National Cable Television Ass'n, 415 U.S. at 340, 94 S.Ct. at 1148. . In 1976, this court reviewed such challenges in the following companion cases: Capital Cities Communications, Inc. v. FCC, 554 F.2d 1135 (D.C.Cir.1976); National Ass’n of Broadcasters v. FCC, 554 F.2d 1118 (D.C.Cir.1976); Electronic Industries Ass’n v. FCC, 554 F.2d 1109 (D.C.Cir.1976); National Cable Television Ass’n v. FCC, 554 F.2d 1094 (D.C.Cir.1976). . The filing fees established in OR-27 consisted of charges for the processing of various types of documents that required Board action. Filing fees ranged from $1 per page for filing tariffs to $2,000 for an application for merger, consolidation, or acquisition of control of direct air carriers. Joint Appendix (J.A.) at 60-64. License fees consisted of charges to carriers that obtained new or amended certified route authority pursuant to section 401 of the Federal Aviation Act, 49 U.S.C. § 1371 (1976). The license fee was based on the carrier’s annual gross transport revenue increase, as estimated by the Board, for the carrier’s first full year of operations resulting from the new route authority. J.A. at 61. . The necessity of a fee schedule revision resulted in large part from increased costs. The Board’s salary and expense appropriation had grown by 80% since the 1966 fiscal year, from $7.9 million to $14.3 million. J.A. at 67-68. The Board estimated that the costs of fee-associated activities in the 1973 fiscal year was $4.2 million. Under the 1968 fee schedule, only $415 thousand, or about 10% of these costs, was recovered. J.A. at 67-68. . The Board noted that only its license fee schedule, and not its filing fee schedule, had been challenged. J.A. at 111. Moreover, the Board contended that its filing fees complied with IOAA requirements. J.A. at 111. . In addition to providing an analysis of the proposed fee schedule, J.A. at 143-44, the Board provided the following explanation: We are proposing ... to change the present filing fees so that there would be a single processing fee based on the specific costs at each step in the process of providing the services. Only those services with a known beneficiary would be included. In developing the proposal, we looked at each office and bureau within the Board to find out what services it performs. Services for which the beneficiary is obscure or which confer an independent public benefit, such as analyses of the Office of Economic Analysis or the Office of General Counsel, or hearings (after a decision has been made whether to proceed by show-cause procedures or by oral evidentiary procedures) would be excluded from the fee schedule. Once the services for known beneficiaries were identified, the basic document for that service, usually an application, would be followed through each step in its processing. Costs would then be assessed for each step. Each document that began a separate, identifiable stage in the process, and that required a special service for a particular person, would be assessed a fee. For example, in a certificate proceeding, additional certificate applications or a request to supplement an application by an exemption would each be charged a separate fee. In this way, the fees would be fair and equitable for all, and evenly distributed. We believe that this proposal meets the criteria stated by the courts, and the intent of Congress in the Independent Offices Appropriation Act. J.A. at 138. See also J.A. at 139. . The Board noted three deficiencies in its earlier method of fee schedule calculations: "1) it exclude[d] recoverable indirect costs; 2) it recovered] less than the full cost to the government, and 3) the reasonableness of the less than full recovery was based on a criterion prohibited for use in fee development by later court decisions.” J.A. at 146. . Alternatively, the Board denied refunds because the fees assessed before April 28, 1977 probably did not exceed what the Board legally could have assessed. See J.A. at 259. . "Processing time” is the average time spent by each bureau for each step in a document’s path, broken down by employee-hours. J.A. at 143. The Board used current processing times for the recalculated fee schedule because this approach favored the carriers: In order to take the most conservative approach [in recalculating fees that the Board could have charged since 1977], the Board used the times reported for processing those items today. The year 1977 was only 1 year before the Airline Deregulation Act took effect. Since the Deregulation Act with its emphasis on expedited procedures and zones of reasonableness for domestic passenger prices, the Board’s processing times for all work times have decreased. The times reported today in this rule are therefore shorter than they would have been in 1977. J.A. at 259. . Significantly, petitioner does not claim that the time estimates are erroneous or that the final Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_appel2_8_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 "miscellaneous". Your task is to determine which of the following categories best describes the litigant. MACK et al. (FRANK, Intervenor) v. PASSAIC NAT. BANK & TRUST CO. et al. No. 8855. Circuit Court of Appeals, Third Circuit Argued April 19, 1945. Decided July 6, 1945. Ernest Kurzrok, in pro. per. Samuel Kaufman, Bilder, Bilder & Kaufman, all of Newark, N. J. (J. Leo Rothschild, of Newark, N. J., on the brief), for appellee Adam Frank. Ralph A. Corbin, of Passaic, N. J., for appellee Passaic Nat. Bank. Isadore Glauberman, of Jersey City, N. J., for appellees Ruth Mack and Lucy Elias. Before BIGGS, GOODRICH, and Mc-LAUGHLIN, Circuit Judges. BIGGS, Circuit Judge. The plaintiffs, Mack and Elias, executrices of the estate of Clara B. Prince, brought suit as holders of “Certificate[s] of shares of proceeds of sale of the East and West Ridgelawn Cemeteries, bodies corporate of the State of New Jersey”, against Passaic National Bank & Trust Company hereinafter called the Trust Company, successor trustee to the Passaic Trust & Safe Deposit Company, hereinafter called the Deposit Company, alleging a breach of the provisions of a trust indenture by the successor trustee. The trust indenture, executed on December 21, 1906, recites, among other things, that one Gruber conveyed to the Deposit Company certain lands in Passaic County, New Jersey, and that the Deposit" Company conveyed these lands to East Ridgelawn Cemetery subject to certain trusts in pertinent part as follows: East Ridgelawn Cemetery was to pay to the Deposit Company as trustee not less than 6‡ for each square foot of land sold by the Cemetery Company for burial purposes, the Deposit Company being required to use these moneys for the perpetual care of the cemetery. The rest of the money received from the sale of lots, less certain specified expenses, was also to be paid to the Deposit Company which on certain dates was required to divide it among certificate holders of which Mrs. Prince was one. The form of the certificate issued was set out in the indenture and was indeed anomalous. The certificate was as follows: “Certificate of shares of proceeds of sale of the East and West Ridgelawn Cemeteries, bodies corporate of the State of New Jersey. This is to certify that * * * is the registered holder of * * * shares of the proceeds of the sale of these companies of sub-lots or plots in the hands of said corporations after deducting certain expenses, charges and disbursements provided for in the deed by which the said lands were conveyed to the said corporations by the * * * Deposit Company. * * * This certificate is part of an issue of shares amounting in the whole to thirteen thousand five hundred. * * * The holder of this certificate is entitled to receive his pro rata share of such proceeds of sale from time to time as provided in said agreement above mentioned. Witness the seals of the companies and the signatures of their Presidents and Treasurers this -- day of -, 19 — .” There follows the words “East Ridgelawn Cemetery - President - Treasurer.” and "West Ridgelawn Cemetery - President -- Treasurer.” It should be stated that except within the form of the certificate just quoted, West Ridgelawn Cemetery is not referred to in the indenture. The parties state that a trust indenture in similar terms, mutatis mutandis, was executed on June 3, 1907, by the Deposit Company in respect to the sale of lots of West Ridgelawn Cemetery. Mrs. Mack and Mrs. Elias as executrices own certificates in the form stated. The complaint filed by the executrices alleges that the Trust Company is the successor to the Deposit Company, that the Trust Company is in breach of its fiduciary duty in that it failed to collect a certain money decree procured by it in the New Jersey Court of Chancery on July 18, 1933 against East Ridgelawn Cemetery in the sum of $205,973 and that the Trust Company has permitted East Ridgelawn Cemetery “to disburse its funds to other creditors for salaries and other expenses * * ”, that “Although requested by other shareholders [certificate holders] to * * sequester the income of the * * * East Ridgelawn Cemetery for the purpose of applying a portion thereof to the payment” of the decree of the Court of Chancery of New Jersey, the Trust Company failed to do so and that by reason of this failure the income and funds of East Ridgelawn Cemetery was dissipated. The complaint refers to the trust indenture of 1906 and to conveyances made to "East and West Ridge-lawn Cemeteries” and asserts that though the Deposit Company was given a lien upon the cemetery properties “upon default in payment of the shares of proceeds of sale of lots by the said cemeteries” the lien has been lost by the failure of the Trust Company to exercise it. The complaint also alleges that the Trust Company was a negligent trustee because it invested a large part of the “permanent care fund", the fund for the perpetual care of graves, in securities illegal for trust investments under the laws of New' Jersey whereby the moneys were dissipated. The complainant prays that the Trust Company be compelled to account for the losses suffered by the plaintiffs’ estate and by “all other shareholders of the East and West Ridgelawn Cemeteries”; that the Trust Company be relieved of its trust and that a decree be entered removing it as trustee; that the Trust Company be required to pay to the new trustee such sums as may be determined to be due and owing from it by reason of the trustee’s negligence, misfeasance and nonfeasance; and for such other and further relief as the court may deem to be just and proper. The Trust Company appeared and filed an answer and counterclaim. The learned District Judge referred the case to a special master. It appears from evidence offered to the master that neither the Deposit Company nor the Trust Company collected or received funds from West Ridgelawn Cemetery but did collect and receive funds from East Ridgelawn Cemetery. It does not appear how the Deposit Company and its successor the Trust Company could collect funds from the sale of lots in East Ridgelawn Cemetery for the benefit of certificate holders and not collect funds for the benefit of certificate holders from the sale of lots in West Ridgelawn Cemetery without standing in breach of trust. The memorandum opinion of Vice Chancellor Backes and the decree entered in the New Jersey Chancery suit cited do not compel a contrary conclusion. From the decree and the opinion it appears that on January 1, 1933, there was due from East Ridge-lawn Cemetery to the perpetual care fund of that cemetery the sum of $3,418, and that there was due from East Ridgelawn Cemetery to the fund for the benefit of the certificate holders the sum of $205,973. The learned Vice Chancellor did not determine whether or not there was any sum due from West Ridgelawn Cemetery to the trustee. West Ridgelawn Cemetery was not a defendant in the case before him. In the proceeding in the court below the Trust Company filed an account “as to the dividend and perpetual care funds”. The special master received evidence in respect to the trustee’s account, heard argument and on May 22, 1944, filed a report recommending the approval and allowance of the account of the Trust Company “as Trustee under the Declaration of Trust”. On this report the court below entered a decree which contained a number of recitals. The first states that Gruber conveyed certain lands in the “City of Clifton,' County of Passaic and State of New Jersey, to the - Deposit Company set forth in two Declarations of Trust made by the - Deposit Company dated December 21, 1906 [dealing with lands of East Ridgelawn Cemetery] and June 3, 1907 [dealing with lands of West Ridgelawn Cemetery] respectively -; that in accordance with the said Declarations of Trust the-Deposit Company took title to the said lands and premises, which it thereafter conveyed to two Cemetery Associations known as East Ridgelawn Cemetery and West Ridgelawn Cemetery. -” The decree confirmed the special master’s report as filed and approved and allowed the account of the Trust Company “as Trustee under the Declaration of Trust”, authorized the resignation and withdrawal of the Trust Company “as Trustee under said Declarations of Trust”, appointed substitute trustees in place of the Trust Company, vested them “with all powers, privileges and duties of the Trustee appointed under the terms and conditions of the DecIcurations of Trust * * * with full power and authority to liquidate the assets of the Trust Estate to the end that the proceeds may hereafter be distributed to those entitled thereto * * ”. The decree also authorized the trustees to collect all moneys due under the decree of July 18, 1933, of the New Jersey Chancery Court and enjoined all persons from interfering with the possession or the management of the successor trustees and restrained all persons from bringing any suit against “the said Trust Estate“ without first obtaining leave of the court. The decree also reserved jurisdiction to fix the reasonable value of the services of the Trust Company and the Deposit Company “as Trustees under the Declarations of Trust”. The closing paragraph of the decree required “all known shareholders [to appear and] show cause * ” on June 12, 1944 “why a decree should not be entered relieving the * * Trust Company from any responsibility in connection with said Trust. * * *” It will be observed that parts of the decree referred to and purported to telieve the Trust Company as trustee under both trusts while other parts of the decree are directed only to the asserted negligence of the Trust Company in not collecting from East Ridgelawn Cemetery that portion of the money decree entered by the New Jersey Chancery Court for the benefit of certificate holders. In view of the form established for the certificates by both indentures there may be one, and only one, fund established or to be established for the benefit of certificate holders. Such moneys, if any, as may be collected from the Trust Company may be subject to a prior charge in favor of the perpetual care funds of both cemeteries or of either cemetery. The decree of May 29, 1944, purports to deal with any right which any person may seek to assert against the Trust Company; for example, it enjoins “all persons” from interfering with the possession or the management of the successor trustees, and as we have pointed out treats on occasion with both declarations of trust, that of December 21, 1906 as well as that of June 3, 1907. If the certificate holders are entitled to share in a single fund and that fund be subject to paramount equitable liens which may be asserted on behalf of the lot holders of both cemeteries or of either cemetery, the decree of May 29, 1944, and a decree entered in the form suggested by the rule to show cause may affect the rights of the lot holders of both cemeteries or of either cemetery. We must next proceed to appraise the position of the appellant Kurzrok against this background. Kurzrok, a lot owner in West Ridgelawn Cemetery, but not a certificate holder, appeared pro se in the District Court on June 12, 1944, the return day of the rule to show cause designated in the decree of May 29, 1944, and sought to intervene in the proceedings on the ground that any rights which he and other lot owners in West Ridgelawn Cemetery might have against the Trust Company for breach of trust in respect to the perpetual care fund required to be set up for West Ridge-lawn Cemetery, were prejudiced by the decree of May 29, 1944, and might be affected by any subsequent decree framed as the rule to show cause would suggest. His application to intervene was denied and he appealed to this court. Counsel for the plaintiffs and for another intervening certificate holder assert, and it is not denied by the appellant, that West Ridgelawn Cemetery is now in receivership in the New Jersey Court of Chancery and that that Court has taken possession of all of the property and assets of the corporation and is presently engaged in administering its affairs. Counsel for the certificate holders concede, however, that the decree of May 29, 1944, unless modified, may affect Kurzrok’s rights and they, as well as Kurzrok, have submitted to us suggested forms of decrees to be entered by this court in order that Kurzrok’s rights may be protected in the court below. In our opinion none of the suggested decrees meets the questions here presented. We think it is clear that Kurzrok’s rights are affected by the decree of May 29, 1944, in its present form and that he was and is entitled to intervention of right pursuant to Rule 24(a) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for the lot owners of West Ridgelawn Cemetery are not and cannot be represented adequately by the certificate holders. Kurzrok’s right to appeal therefore is absolute and will lie from the order of the court below refusing him intervention. See Moore’s Federal Practice, vol. 2, § 24.06, p. 2332, and the authorities cited in note 9. Cf. the circumstances and the ruling in Kennedy v. Bethlehem Steel Company, 3 Cir., 102 F.2d 141. Cf. also old Equity Rule 37, 28 U.S.C.A. § 723 Appendix. Counsel for the certificate holders assert that the decree of May 29, 1944, may be so modified that Kurzrok’s rights will not be affected thereby. If this be so, it is a matter for the District Court to be dealt with by that tribunal as the facts and the law require. The order appealed from is reversed and the cause is remanded for such action by the court below as may be appropriate. Emphasis added throughout this opinion. Neither the answer nor the counterclaim is part of the record before us. No opinion for publication. We reach this conclusion despite the statements of counsel, which we accept fully, that the court below by an amendatory order struck out of the decree of May 29, 1944, the two paragraphs, hereinbefore referred to, confirming the report of the special master in all respects and approving and allowing the account of the Trust Company as trustee. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant? A. fiduciary, executor, or trustee B. other C. nature of the litigant not ascertained Answer:
songer_usc1	18	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. UNITED STATES of America, Plaintiff-Appellee, v. Dennis WILLS, Robert Hardaway, Donald Moore, and George Van Trece, Defendants-Appellants. Nos. 78-2109, 78-2134, 78-2181 and 78-2223. United States Court of Appeals, Seventh Circuit. Argued Feb. 13, 1979. Decided March 5, 1979. James R. Vogler, Winston & Strawn, Paul Bradley, Chicago, 111., for defendants-appellants. Robert W. Tarun, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee. Before TONE and BAUER, Circuit Judges, and MORGAN, District Judge. The Honorable Robert D. Morgan, Chief Judge of the United States District Court for the Southern District of Illinois, is sitting by designation. TONE, Circuit Judge. The four appellants in these consolidated appeals were found guilty of theft from interstate shipments in violation of 18 U.S.C. § 659. The only substantial question presented is whether the articles stolen were “goods or chattels moving as or which are a part of or which constitute an interstate . . . shipment of freight, express, or other property” within the meaning of that statute. We hold that they were and affirm the convictions. Count 1 of the indictment charged all four defendants with theft of 14 appliances from a loading platform at Spiegel, Inc. at Chicago, Illinois, on July 5, 1977. Count 2 charged defendant Wills with the theft of two appliances from the same platform on the same date. After a bench trial all defendants were found guilty. There was substantial evidence that the goods in question were stolen by the defendants from the Spiegel’s loading platform as charged in the indictment. Except for a contention by Wills that he did not participate in the theft charged in Count 1, the defendants’ contentions relate to questions other than whether they stole the goods. We discussed the interstate commerce requirements of 18 U.S.C. § 659 at some length in United States v. Parent, 484 F.2d 726, 729-731 (7th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 79 (1974), and we need not repeat what was said there. In that opinion we quoted with approval the following passage from United States v. Cousins, 427 F.2d 382, 385 (9th Cir. 1970): The determination of whether a shipment is in interstate commerce at a given time is essentially a practical one, depending upon the relationship between the consignee, consignor, and carrier, the indicia of interstate commerce at the time of the theft occurs, and the preservation of the congressional intent. We then added that, “No single factor . . . is conclusive in the determination.” 484 F.2d at 729. It is unnecessary that the goods in question leave the shipper’s facility or be actually moving in interstate commerce at the time of the theft. United States v. Williams, 545 F.2d 1036, 1039 (6th Cir. 1976); United States v. Astolas, 487 F.2d 275, 279 (2d Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); see United States v. Gollin, 176 F.2d 889, 893-894 (3d Cir.), cert. denied sub nom. Richman v. United States, 338 U.S. 848, 70 S.Ct. 89, 94 L.Ed. 519 (1949). In Williams, the goods were stolen from the shipper’s “loading and shipping facilities.” United States v. Williams, supra, 545 F.2d at 1039. As explained in Astolas, the language of the statute itself suggests that § 659 reaches such thefts: The scope of the phrase “moving as or which are a part of or which constitute an interstate or foreign shipment” is plainly to be inferred from the list of places from which theft is proscribed. These places include not only railroad cars and tractor-trailers and other modes of transportation, but any “station, station house, platform or depot * * It was intended that a theft from commerce could be committed before the goods were placed on board, and after they are taken off a carrier; it is not required that a shipment be in motion. 487 F.2d at 279; see also United States v. Parent, supra, 484 F.2d at 729-731. The evidence upon which the interstate commerce issue turns was as follows. Spiegel, a catalog merchant with annual sales of. approximately $360,000,000, received and filled three kinds of customer orders: direct mail orders, telephone orders, and catalog store orders. After receiving an order, Spiegel personnel transmitted to a computer the ordered item’s catalog number, description, and price, the customer’s name, and the destination to which the item was to be shipped. The computer then scheduled the filling and shipment of the order and generated a sales slip and shipping label showing the consignee and his address, the carrier, the date of shipment, and various other data. The sales slip and shipping label were then delivered by messenger to the area of the warehouse where the ordered item was stored, which, for the goods involved in the instant case, was the upper floors of Spiegel’s West Pershing Road facility. At that point an order picker examined the sales slip and shipping label, picked the packaged item from storage, and delivered it to a checker station. Using a computer terminal connected to the central computer, the checker made sure the item picked was the one ordered, weighed it on an electronic scale connected to the computer terminal, and inserted the shipping label- into the computer terminal’s printer. The computer calculated a transportation charge and caused it to be printed on the label, which was then affixed to the package containing the ordered item. At the same time the computer billed the customer and credited the account of the common carrier that was to transport the ordered item to the consignee. Within minutes, the labeled parcel was placed on a conveyor belt, which transported it immediately to the first floor sorting and loading area. There one of the sorters ascertained from the label the designated common carrier and placed the parcel on a flat truck with other parcels that carrier was to transport. Dock hands then wheeled the loaded flat truck onto trailers waiting in the bays of the dock area. Defendants Hardaway, Wills, and Sheldon were Spiegel dock hands assigned to this duty. Once an item was labeled and placed on the conveyor belt, there was no practical way for Spiegel to interrupt its journey to the destination the computer had printed on the label. Some 10,000 labeled parcels passed through Spiegel’s first floor loading area daily. After labelling, the goods were moved from the storage floor to the carrier’s truck at the dock in less than four hours. A representative of Spiegel testified that trying to find an ordered item on the first floor loading area of Spiegel’s facility “would be like looking for a needle in a haystack.” All of the parcels referred to in the indictment in the case at bar were labeled for out-of-state destinations. Twelve of the parcels charged in Count 1 were to be transported by United Parcel Service. For this carrier, computer manifests were used instead of traditional bills of lading. The Spiegel computer prepared the manifests during the night following the scheduled departure of the ordered items. The twelve stolen United Parcel Service parcels matched twelve computer manifests introduced in evidence. In addition to the twelve United Parcel items, there were three items covered by straight bills of lading, which were introduced at the trial. Spiegel was unable to locate a bill of lading for the remaining item, but other documentation showed that the item was labeled for shipment to an out-of-state consignee. Under the circumstances we have described, a parcel’s interstate journey commenced when it was moved by conveyor belt to the dock area, for it was then that Spiegel’s power to prevent it from making its scheduled interstate journey ended. After that, even if the customer cancelled or changed the order, Spiegel could not retrieve the parcel from among the thousands of parcels that were assembled in the loading area. The irrevocability of this commitment to interstate movement was not altered by the chance that if the parcel was damaged en route to the carrier’s vehicle and the damage was discovered it would be removed from shipment. Any goods in the stream of interstate commerce are subject to the chance that they will be held up or diverted through accident before they cross a state line. The statute nevertheless applies from the time the goods enter the stream. It is not always necessary for purposes of § 659, as the decisions discussed above illustrate, that the commitment to interstate commerce be irrevocable, but, when that is the case, the statute is clearly applicable. Accordingly, we conclude that the stolen goods in this case were within the statute. Wills, and arguably other defendants, contend that the evidence failed to show theft of the parcels from the first floor loading area rather than one of the warehouse floors, and that parcels in the latter area were clearly not an interstate shipment. Although there was no direct evidence that the defendants took the parcels from the loading area, the circumstantial evidence to that effect was sufficient. The loading area was the place where the defendants were assigned to work and where they therefore had ready access to labeled parcels, the contents of which could readily be identified from the label or the container itself. The parcels in question were labeled with computer generated labels. It was the practice to place a parcel on the conveyor for movement to the first floor loading area as soon as it had been labeled at the computer terminal. The inference is strong that the parcels in question were taken from the loading area by the defendants. Defendant Wills contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. With respect to Count 1, this argument amounts to a challenge to the credibility of the Federal Bureau of Investigation Agent who testified about his observation, while working undercover, of Wills’ participation in the thefts. It is enough to say that questions of credibility are for the trier of fact. With respect to Count 2, Wills challenges the interstate nature of the shipment because of alleged deficiencies in the documentation and failure to prove the value of one of the items, a GE portable color television set. The documentation in evidence was sufficient to show that both items were bound for out-of-state destinations. Concerning the value of the television set, there was evidence that Wills himself told the undercover agent it was worth $200. This, together with the item itself, which was admitted in evidence, constituted sufficient evidence to support the finding of a value in excess of $100. In any event, it was enough to sustain Count 2 that the other item’s value concededly was in excess of $100. Defendant Moore argues that there was a fatal variance between the charge in the indictment and the government’s evidence. The indictment charged that the stolen goods were “moving as, were part of, and did constitute an interstate shipment.” (Emphasis supplied.) Moore contends that because the conjunctive was used, the government was required to prove all three charges. It was clearly sufficient if one of the three was proved. United States v. Astolas, supra, 487 F.2d at 280; United States v. Barker, 514 F.2d 1077, 1081 (7th Cir. 1975). The judgments of conviction are _ affirmed. Affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_r_fed	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, Charles M. Carberry, Investigations Officer, Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO; the Commission of La Cosa Nostra; Anthony Salerno, also known as Fat Tony; Matthew Ianniello, also known as Matty the Horse; Anthony Provenzano, also known as Tony Pro; Nunzio Provenzano, also known as Nunzi Pro; Anthony Corallo, also known as Tony Ducks; Salvatore Santoro; Christopher Furnari, Sr., also known as Christie Tick; Frank Manzo; Carmine Persico, also known as Junior, also known as The Snake; Gennaro Langella, also known as Gerry Lang; Philip Rastelli, also known as Rusty; Nicholas Marangello, also known as Nicky Glasses; Joseph Massino, also known as Joey Messina; Anthony Ficarotta, also known as Figgy; Eugene Boffa, Sr.; Francis Sheeran; Milton Rockman, also known as Maishe; John Tronolone, also known as Peanuts; Joseph John Aiuppa, also known as Joey O’Brien, also known as Joe Doves, also known as Joey Aiuppa; John Phillip Cerone, also known as Jackie the Lackie, also known as Jackie Cerone; Joseph Lombardo, also known as Joey the Clown; Angelo LaPietra, also known as The Nutcracker; Frank Balistrieri, also known as Mr. B.; Carl Angelo DeLuna, also known as Toughy; Carl Civella, also known as Corky; Anthony Thomas Civella, also known as Tony Ripe; General Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Jackie Presser, General President; Weldon Mathis, General Secretary-Treasurer; Joseph Trerotola, also known as Joe T., First Vice President; Robert Holmes, Sr., Second Vice President; William J. McCarthy, Third Vice President; Joseph W. Morgan, Fourth Vice President; Edward M. Lawson, Fifth Vice President; Arnold Weinmeister, Sixth Vice President; John H. Cleveland, Seventh Vice President; Maurice R. Schurr, Eighth Vice President; Donald Peters, Ninth Vice President; Walter J. Shea, Tenth Vice President; Harold Friedman, Eleventh Vice President; Jack D. Cox, Twelfth Vice President; Don L. West, Thirteenth Vice President; Michael J. Riley, Fourteenth Vice President; Theodore Cozza, Fifteenth Vice President; Daniel Ligurotis, Sixteenth Vice President; Salvatore Provenzano, also known as Sammy Pro, Former Vice President, Defendants, Joseph Cimino, Jr., Appellant. No. 1094, Docket 91-6280. United States Court of Appeals, Second Circuit. Argued March 12, 1992. Decided May 27, 1992. Elkan, Abramowitz, New York City (Lawrence S. Bader, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., of counsel), for appellant. Christine H. Chung, Asst. U.S. Atty., New York City (Roger S. Hayes, Acting U.S. Atty., S.D.N.Y. and Gabriel W. Goren-stein, Asst. U.S. Atty., of counsel), for plaintiff-appellee. Theodore L. Hecht, New York City (Charles M. Carberry, of counsel), for appellee. Before: OAKES, Chief Judge, WALKER, Circuit Judge, and POLLACK, District Judge. Honorable Milton Pollack, U.S. District Judge for the Southern District of New York, sitting by designation, OAKES, Chief Judge: In this appeal, we are asked to decide whether internal union disciplinary sanctions should be upheld against Joseph Cimino, Jr., former President and Business Agent of Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”), AFL-CIO, in Philadelphia. The sanctions were imposed for Cimino’s violation of the IBT Constitution through his knowing association with the Boss of the Philadelphia Family of La Cosa Nostra, Nicodemo Scarfo; the violation was proved essentially by three hearsay statements from former La Cosa Nostra members. Cimino appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, upholding the sanctions imposed on him. 777 F.Supp. 1130. For the reasons set forth below, we affirm. I. Background On March 14, 1989, Judge Edelstein approved a Consent Decree that settled civil racketeering charges brought by the Government against the IBT and members of the IBT General Executive Board. We have previously discussed this litigation in detail, as well as the disciplinary provisions of the Consent Decree. See United States v. International Brotherhood of Teamsters (Yellow Freight Systems, Inc.), 948 F.2d 98, 100 (2d Cir.1991); United States v. International Brotherhood of Teamsters (Friedman & Hughes), 905 F.2d 610, 612-13 (2d Cir.1990). On August 30, 1990, the Investigations Officer charged Joseph Cimino, Jr., then President and Business Agent of Local 107 in Philadelphia, with violating Article II, section 2(a) and Article XIX, section 6(b) of the IBT Constitution through his knowing association with Nicodemo Scarfo, the boss of the Philadelphia Family of La Cosa Nostra, during the time he was an officer of Local 107. The Independent Administrator held a hearing on the charge against Cimino on November 29, 1990. In support of the charges, the Investigations Officer relied primarily on the declaration of Special Agent James T. Maher of the Federal Bureau of Investigation, to which extensive evidence was appended as exhibits. In the declaration, Special Agent Maher summarizes Cimino’s association with the Philadelphia Family of La Cosa Nostra and particularly with Nicodemo Scarfo. Special Agent Maher’s declaration is based largely on three hearsay declarations from admitted former members of the Philadelphia Family of La Cosa Nostra — former underboss Philip Leonetti, former capo Lawrence Merlino, and former soldier Nicholas Caramandi. Each statement offers a disheartening glimpse into Cimino’s relationship with the Philadelphia Family in general and with Scarfo in particular. For example, Leonetti characterizes Cimino as “the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.” He goes on to describe various favors which Cimino performed for Scarfo, such as using his union position to arrange for employment of individuals referred to him by members and associates of La Cosa Nostra. In return, Cimino received the support of the Philadelphia Family in his union office. He also describes a meeting which he attended during which Scarfo told Cimino that he “should not be worried in light of the recent murder of John McCullough, a Roofers Union official, because Cimino was under the protection of the Philadelphia Family, and could rely on the family for whatever assistance he or his union might require.” The declarations of Merlino and Caramandi provide similar examples of the association between Cimino and Scarfo, the former of which includes perhaps the most disturbing allegation — that Cimino nodded in agreement when Scarfo proclaimed to him at a meeting, “I’m the union; I run Local 107.” The Investigations Officer also submitted two FBI surveillance reports, one of which states that a Special Agent and a student intern observed Cimino and a fellow union officer at a Philadelphia restaurant on October 19, 1982 with members of the Philadelphia Family. The agent reported that the groups conversed and that the La Cosa Nostra members bought drinks for Cimino and his colleague. In his defense, Cimino offered his own testimony denying the allegations. He also introduced the testimony of six witnesses and submitted three affidavits. Most of the live witnesses offered only their opinions of Cimino’s character. Some of this testimony, however, disputed the characterizations of particular events in the three hearsay declarations. On May 28, 1991, after reviewing the hearing evidence and post-hearing submissions, the Independent Administrator (“IA”) concluded in a written decision that the Investigations Officer satisfied his burden of proving that Cimino had associated knowingly with Scarfo. The IA found that “the evidence reveals a close relationship between Cimino and IBT Local 107 on the one hand, and Scarfo and the Philadelphia Family on the other.” In particular, he found that “Cimino met with members of La Cosa Nostra on numerous occasions, performed services for the Philadelphia Family in exchange for its support, and met with Scarfo or his underlings over a period of years in a variety of places to discuss union business.” As a sanction, the IA banished Cimino permanently from the IBT, ordered Cimino to relinquish all of his IBT-affiliated union positions, and prohibited him from drawing any money from the IBT or any IBT-affiliated source. In addition, the IA ordered that no IBT or IBT-affiliated entity should make any further contributions on Cimino’s behalf to any employee health, pension, and welfare plans, and directed that neither Local 107 nor any other IBT-affiliated entity should make any contributions to Cimino’s legal expenses in connection with this matter. On October 16, 1991, the district court affirmed the IA’s decision in all respects. Cimino now appeals from the district court’s order. II. Discussion The precise standard of appellate review under the consent decree is difficult to identify. The decree provides in Paragraph 16 that the district court, when reviewing the actions of the Independent Administrator, “shall apply the same standard of review applicable to review of final federal agency action under the Administrative Procedure Act.” Pursuant to this provision, the district court reviewed the IA’s decision here to determine if it was arbitrary or capricious. See 5 U.S.C. § 706 (1988) (scope of review under the Administrative Procedure Act (APA)). The consent decree offers no similar guidance on the standard of review for issues raised in this court. Previously, we have not found it necessary to recite an exact standard of appellate review, and we need not do so today. See Friedman & Hughes, 905 F.2d at 616-17 (district court’s order should be affirmed under “any reasonable standard of review”). Under even the supposedly more searching standard of review provided in the APA, which permits agency findings to be set aside only if they are “unsupported by substantial evidence”, the district court’s order must be sustained. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). The parties do not dispute that reliable hearsay is admissible in IBT union disciplinary hearings, see United States v. International Brotherhood of Teamsters (Senese & Talerico), 941 F.2d 1292, 1297-98 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 76, 116 L.Ed.2d 50 (1991), or that reliable hearsay may constitute substantial evidence to support an administrative decision. See Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-30, 28 L.Ed.2d 842 (1971). Rather, Cimino argues that the three incriminating hearsay statements of former Philadelphia Family La Cosa Nostra members are not sufficiently reliable to support the IA’s conclusion that Cimino associated knowingly with Nicodemo Scarfo. We disagree. At the outset, appellant argues that we should consider the statements presumptively unreliable, because the declarants made their statements pursuant to cooperation agreements with the Government. See, e.g., Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986) (“[Wjhen one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.”). However, the concept of presumptive unreliability in our Sixth Amendment jurisprudence is inapposite where, as here, there is no danger of a criminal conviction based on unreliable evidence. See id. at 543, 106 S.Ct. at 2063. We are concerned only with whether this evidence was sufficiently reliable such that its admission does not call into question the “integrity and fundamental fairness” of Cimino’s internal union disciplinary hearing. Richardson, 402 U.S. at 410, 91 S.Ct. at 1431. A number of factors support the IA’s and the district court’s conclusion that the statements are reliable. As the IA noted, the statements corroborate each other in crucial respects. First, each declarant maintains that a close relationship existed between Cimino and Local 107, and Scarfo and the Philadelphia Family of La Cosa Nostra. Declaration of Leonetti (“Cimino acted as the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.”); Declaration of Caramandi (“Scarfo was Cimino’s primary point of contact with the Philadelphia Family ... Cimino’s relationship to Scarfo and the Philadelphia Family was general knowledge among members of the Philadelphia Family.”); Declaration of Merlino (“It was generally understood that the Philadelphia Family used Cimino and his position in the Teamsters to perform favors for the benefit of mob members and associates as needed.”). Moreover, Merlino and Caramandi both state that Scarfo believed Local 107 was part of the Philadelphia Family and that he controlled the union. Furthermore, the statements paint a consistent picture of certain details regarding the relationship between Cimino and Searfo. For example, each declarant asserts that Cimino arranged union job assignments for individuals referred to him by members and associates of the Philadelphia Family. Two of the declarants indicate that Cimino and Scarfo took precautions not to be seen together. Two of the declarants also identify the Saloon restaurant in Philadelphia as an afternoon meeting place where Cimino and Scarfo, or members communicating on Scarfo’s behalf, discussed union business. An FBI surveillance report of October 19, 1982, introduced through Special Agent Maher’s declaration, supports this claim by placing Cimino in the company of Philadelphia Family members at the Saloon on that afternoon. In addition, portions of the former La Cosa Nostra members’ statements describing the structure of the Philadelphia Family of La Cosa Nostra match portions of FBI Special Agent Maher’s declaration where he undertakes a similar description. Each statement is also signed by the declarant, witnessed by at least one federal law enforcement official, and contains an attestation clause indicating that the statement was given voluntarily and is “true and accurate.” Finally, the three declarants faced possible criminal sanctions for making false statements to the FBI. See 18 U.S.C. § 1001 (1988). For these reasons, we conclude that the three hearsay statements were reliable. Moreover, alone they constitute “such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion” that Cimino associated knowingly with Nicodemo Scarfo while serving as President and Business Agent of Local 107. Consolidated Edison, 305 U.S. at 229, 59 S.Ct. at 216. Although the precise details of Cimino’s association with Scarfo provided in each declaration differ, the three statements taken together present a clear image of the influence Nicodemo Scarfo exercised over Local 107 through his relationship with Joseph Cimino. Cimino also contends that his disciplinary sanctions should be overturned because the IA should have credited his testimony denying any involvement with Scarfo or the Philadelphia Family, the testimony of his six witnesses, and the testimony of his three affiants over the three hearsay declarations of the former La Cosa Nostra members. However, when reviewing the IA’s decisions, we do not reweigh the evidence presented at the disciplinary hearing; instead, we look only to see whether adequate evidence was presented to support the IA’s conclusion. See Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Here, the three hearsay declarations of the former La Cosa Nostra members were adequate to support the IA’s conclusion. Moreover, the IA found that Cimino’s denials were “self-serving” and that he was not a credible witness. We find no reason to question this credibility determination, especially given the IA’s superior vantage point. Cf. NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir.1982) (“[Credibility findings ... will not be overturned unless they are ‘hopelessly incredible’ or they ‘flatly contradict’ either the ‘law of nature’ or ‘undisputed documentary testimony.’ ”) (quoting NLRB v. Columbia Univ., 541 F.2d 922, 928 (2d Cir.1976)), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983). Cimino bases his final claim for reversal on the IA’s failure to make explicit credibility findings with respect to Cimino’s other witnesses. However, there was no reason for the IA to make explicit findings on their credibility because four of Cimino’s six witnesses offered only their opinions of his good character, rather than offering conflicting testimony that Cimino did not associate with Scarfo based on direct knowledge. The other two witnesses offered alternative explanations for a few events detailed in the hearsay declarations of the former La Cosa Nostra members. Because this testimony did not call into question the bulk of the allegations in the three hearsay declarations, a finding that these witnesses were not credible was unnecessary. Based on the foregoing, the order of the district court affirming the IA’s decision in all respects is affirmed. . Article II, section 2(a) of the IBT Constitution requires every IBT member to "conduct himself ... in a manner so as not to bring reproach upon the Union." Article XIX, Section 6(b) of the IBT Constitution provides a non-exhaustive list of the bases for charges against IBT members, including "violation of [the] oath of office or of the oath of loyalty to the Local Union and the International Union." . But see Association of Data Processing v. Board of Governors, 745 F.2d 677, 683-84 (D.C.Cir.1984), where then Judge Scalia explained: When the arbitrary or capricious standard is performing th[e] function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test, since it is impossible to conceive of a "nonarbitrary” factual judgment supported only by evidence that is not substantial in the APA sense____ 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_certreason	K	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. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM v. MCORP FINANCIAL, INC., et al. No. 90-913. Argued October 7, 1991 Decided December 3, 1991 Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the cases. Jeffrey P. Minear argued the cause for petitioner in No. 90-913 and respondent in No. 90-914. On the briefs were Solicitor General Starr, Assistant Attorney General Ger-son, Deputy Solicitor General Roberts, Michael R. Lazerwitz, Anthony J. Steinmeyer, and James V. Mattingly, Jr. Alan B. Miller argued the cause for respondents in No. 90-913 and petitioners in No. 90-914. With him on the briefs were Harvey R. Miller, Steven Alan Reiss, John D. Hawke, Jr., Jerome I. Chapman, Howard N. Cayne, and David F. Freeman, Jr. Together with No. 90-914, MCorp et al. v. Board of Governors of the Federal Reserve System, also on certiorari to the same court. Justice Stevens delivered the opinion of the Court. MCorp, a bank holding company, filed voluntary bankruptcy petitions in March 1989. It then initiated an adversary proceeding against the Board of Governors of the Federal Reserve System (Board) seeking to enjoin the prosecution of two administrative proceedings, one charging MCorp with a violation of the Board’s “source of strength” regulation and the other alleging a violation of § 23A of the Federal Reserve Act, as added, 48 Stat. 183, and amended. The District Court enjoined both proceedings, and the Board appealed. The Court of Appeals held that the District Court had no jurisdiction to enjoin the §23A proceeding, but that, under the doctrine set forth in Leedom v. Kyne, 358 U. S. 184 (1958), the District Court had jurisdiction to review the validity of the “source of strength” regulation. The Court of Appeals then ruled that the Board had exceeded its statutory authority in promulgating that regulation. 900 F. 2d 852 (CA5 1990). We granted certiorari, 499 U. S. 904 (1991), to review the entire action but, because we conclude that the District Court lacked jurisdiction to enjoin either regulatory proceeding, we do not reach the merits of MCorp’s challenge to the regulation. H-t In 1984, the Board promulgated a regulation requiring every bank holding company to “serve as a source of financial and managerial strength to its subsidiary banks.” In October 1988, the Board commenced an administrative proceeding against MCorp, alleging that MCorp violated the source of strength regulation and engaged in unsafe and unsound banking practices that jeopardized the financial condition of its subsidiary banks. The Board also issued three temporary cease-and-desist orders. The first forbids MCorp to declare or pay any dividends without the prior approval of the Board. ' App. 65-67. The second forbids MCorp to dissipate any of its nonbank assets without the prior approval of the Board. Id., at 68-70. The third directs MCorp to use “all of its assets to provide capital support to its Subsidiary Banks in need of additional capital.” Id., at 85. By agreement, enforcement of the third order was suspended while MCorp sought financial assistance from the Federal Deposit Insurance Corporation (FDIC). In March 1989, the FDIC denied MCorp’s request for assistance. Thereafter, creditors filed an involuntary bankruptcy petition against MCorp in the Southern District of New York, and the Comptroller of the Currency determined that 20 of MCorp’s subsidiary banks were insolvent and, accordingly, appointed the FDIC as receiver of those banks. MCorp then filed voluntary bankruptcy petitions in the Southern District of Texas and all bankruptcy proceedings were later consolidated in that forum. At the end of March, the Board commenced a second administrative proceeding against MCorp alleging that it had violated §23A of the Federal Reserve Act by causing two of its subsidiary banks to extend unsecured credit of approximately $63.7 million to an affiliate. For convenience, we shall refer to that proceeding as the “§ 23A proceeding” and to the earlier proceeding as the “source of strength proceeding.” In May 1989, MCorp initiated this litigation by filing a complaint in the Bankruptcy Court against the Board seeking a declaration that both administrative proceedings had been automatically stayed pursuant to the Bankruptcy Code; in the alternative, MCorp prayed for an injunction against the further prosecution of those proceedings without the prior approval of the Bankruptcy Court. On the Board’s motion, the District Court transferred that adversary proceeding to its own docket. In June 1989, the District Court ruled that it had jurisdiction to enjoin the Board from prosecuting both administrative proceedings against MCorp and entered a preliminary injunction halting those proceedings. The injunction restrained the Board from exercising “its authority over bank holding companies ... to attempt to effect, directly or indirectly, a reorganization of the MCorp group [of companies] except through participation in the bankruptcy proceedings.” In re MCorp, 101 B. R. 483, 491. The Board appealed. Although the District Court did not differentiate between the two Board proceedings, the Court of Appeals held that the § 23A proceeding could go forward but that the source of strength proceeding should be enjoined. The court reasoned that the plain language of the judicial review provisions of the Financial Institutions Supervisory Act of 1966 (FISA), 80 Stat. 1046, as amended, 12 U. S. C. § 1818 et seq. (1988 ed. and Supp. II), particularly § 1818(i)(1), deprived the District Court of jurisdiction to enjoin either proceeding, but that our decision in Leedom v. Kyne, 358 U. S. 184 (1958), nevertheless authorized an injunction against an administrative proceeding conducted without statutory authorization. The Court of Appeals ruled that the Board's promulgation and enforcement of its source of strength regulation exceeded its statutory authority. Accordingly, the court vacated the District Court injunction barring the § 23A proceeding, but remanded the case with instructions to enjoin the Board from enforcing its source of strength regulation. Both parties petitioned for certiorari. The Board's petition challenges the Court of Appeals' interpretation of Leedom v. Kyne, as well as its invalidation of the source of strength regulation. MCorp's petition challenges the Court of Appeals' interpretation of the relationship between the provisions governing judicial review of Board proceedings and those governing bankruptcy proceedings. We first address the latter challenge. II A series of federal statutes gives the Board substantial regulatory power over bank holding companies and establishes a comprehensive scheme of judicial review of Board actions. See FISA; the Bank Holding Company Act of 1956 (BHCA), 12 U. S. C. § 1841 et seq. (1988 ed. and Supp. II); and the International Lending Supervision Act of 1983, 12 U. S. C. § 3901 et seq. In this litigation, the most relevant of these is FISA. FISA authorizes the Board to institute administrative proceedings culminating in cease-and-desist orders, 12 U. S. C. §§ 1818(a) — (b) (1988 ed., Supp. II), and to issue temporary-cease-and-desist orders that are effective upon service on a bank holding company. § 1818(c). In addition, FISA establishes a tripartite regime of judicial review. First, § 1818(c)(2) provides that, within 10 days after service of a temporary order, a bank holding company may seek an injunction in district court restraining enforcement of the order pending completion of the related administrative proceeding. Second, § 1818(h) authorizes court of appeals review of final Board orders on the application of an aggrieved party. Finally, §1818(i)(l) provides that the Board may apply to district court for enforcement of any effective and outstanding notice or order. None of these provisions controls this litigation: The action before us is not a challenge to a temporary Board order, nor a petition for review of a final Board order, nor an enforcement action initiated by the Board. Instead, FISA’s preclusion provision appears to speak directly to the jurisdictional question at issue in this litigation: “[E]xcept as otherwise provided in this section no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this section, or to review, modify, suspend, terminate, or set aside any such notice or order.” Ibid. Notwithstanding this plain, preclusive language, MCorp argues that the District Court’s injunction against the prosecution of the Board proceedings was authorized either by the automatic stay provision in the Bankruptcy Code, 11 U. S. C. §362, or by the provision of the Judicial Code authorizing district courts in bankruptcy proceedings to exercise concurrent jurisdiction over certain civil proceedings, 28 U. S. C. § 1334(b). We find no merit in either argument. The filing of a bankruptcy petition operates as an automatic stay of several categories of judicial and administrative proceedings. The Board’s planned actions against MCorp constitute the “continuation . . . [of] administrative . . . proceeding^]” and would appear to be stayed by 11 U. S. C. § 362(a)(1). However, the Board’s actions also fall squarely within § 362(b)(4), which expressly provides that the automatic stay will not reach proceedings to enforce a “governmental unit’s police or regulatory power.” MCorp contends that in order for § 362(b)(4) to obtain, a court must first determine whether the proposed exercise of police or regulatory power is legitimate and that, therefore, in this litigation the lower courts did have the authority to examine the legitimacy of the Board’s actions and to enjoin those actions. We disagree. MCorp’s broad reading of the stay provisions would require bankruptcy courts to scrutinize the validity of every administrative or enforcement action brought against a bankrupt entity. Such a reading is problematic, both because it conflicts with the broad discretion Congress has expressly granted many administrative entities and because it is inconsistent with the limited authority Congress has vested in bankruptcy courts. We therefore reject MCorp’s reading of § 362(b)(4). MCorp also argues that it is protected by §§ 362(a)(3) and 362(a)(6) of the Bankruptcy Code. Those provisions stay “any act” to obtain possession of, or to exercise control over, property of the estate, or to recover claims against the debtor that arose prior to the filing of the bankruptcy petition. MCorp contends that the ultimate objective of the source of strength proceeding is to exercise control of corporate assets and that the § 23A proceeding seeks enforcement of a prepetition claim. We reject these characterizations of the ongoing administrative proceedings. At this point, the Board has only issued “Notices of Charges and of Hearing” and has expressed its intent to determine whether MCorp has violated specified statutory and regulatory provisions. It is possible, of course, that the Board proceedings, like many other enforcement actions, may conclude with the entry of an order that will affect the Bankruptcy Court’s control over the property of the estate, but that possibility cannot be sufficient to justify the operation of the stay against an enforcement proceeding that is expressly exempted by § 362(b)(4). To adopt such a characterization of enforcement proceedings would be to render subsection (b)(4)’s exception almost meaningless. If and when the Board’s proceedings culminate in a final order, and if and when judicial proceedings are commenced to enforce such an order, then it may well be proper for the Bankruptcy Court to exercise its concurrent jurisdiction under 28 U. S. C. § 1334(b). We are not persuaded, however, that the automatic stay provisions of the Bankruptcy Code have any application to ongoing, nonfinal administrative proceedings. MCorp’s final argument rests on 28 U. S. C. § 1334(b). That section authorizes a district court to exercise concurrent jurisdiction over certain bankruptcy-related civil proceedings that would otherwise be subject to the exclusive jurisdiction of another court. MCorp’s reliance is misplaced. Section 1334(b) concerns the allocation of jurisdiction between bankruptcy courts and other “courts,” and, of course, an administrative agency such as the Board is not a "court." Moreover, contrary to MCorp's contention, the prosecution of the Board proceedings, prior to the entry of a final order and prior to the commencement of any enforcement action, seems unlikely to impair the Bankruptcy Court's exclusive jurisdiction over the property of the estate protected by 28 U. S. C. § 1334(d). In sum, we agree with the Court of Appeals that the specific preclusive language in 12 U. S. C. § 1818(i)(1) (1988 ed., Supp. II) is not qualified or superseded by the general provisions governing bankruptcy proceedings on which MCorp relies. III Although the Court of Appeals found that § 1818(i)(1) precluded judicial review of many Board actions, it exercised jurisdiction in this litigation based on its reading of Leedom v. Kyne, 358 U. S. 184 (1958). Kyne involved an action in District Court challenging a determination by the National Labor Relations Board (NLRB) that a unit including both professional and nonprofessional employees was appropriate for collective-bargaining purposes-a determination in direct conflict with a provision of the National Labor Relations Act. The Act, however, did not expressly authorize any judicial review of such a determination. Relying on Switchmen v. National Mediation Bd., 320 U. S. 297 (1943), the NLRB argued that the statutory provisions establishing review of final Board orders in the courts of appeals indicated a congressional intent to bar review of any NLRB action in the District Court. The Court rejected that argument, emphasizing the presumption that Congress normally intends the federal courts to enforce and protect the rights that Congress has created. Concluding that the Act did not bar the District Court’s jurisdiction, we stated: “This Court cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.” 358 U. S., at 190. In this litigation, the Court of Appeals interpreted our opinion in Kyne as authorizing judicial review of any agency action that is alleged to have exceeded the agency’s statutory authority. Kyne, however, differs from this litigation in two critical ways. First, central to our decision in Kyne was the fact that the Board’s interpretation of the Act would wholly deprive the union of a meaningful and adequate means of vindicating its statutory rights. “Here, differently from the Switchmen’s case, ‘absence of jurisdiction of the federal courts’ would mean ‘a sacrifice or obliteration of a right which Congress’ has given professional employees, for there is no other means, within their control ... to protect and enforce that right.” Ibid. The cases before us today are entirely different from Kyne because FISA expressly provides MCorp with a meaningful and adequate opportunity for judicial review of the validity of the source of strength regulation. If and when the Board finds that MCorp has violated that regulation, MCorp will have, in the Court of Appeals, an unquestioned right to review of both the regulation and its application. The second, and related, factor distinguishing this litigation from Kyne is the clarity of the congressional preclusion of review in FISA. In Kyne, the NLRB contended that a statutory provision that provided for judicial review implied, by its silence, a preclusion of review of the contested determination. By contrast, in FISA Congress has spoken clearly and directly: “[N]o court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any [Board] notice or order under this section.” 12 U. S. C. § 1818(i)(l) (1988 ed., Supp. II) (emphasis added). In this way as well, this litigation differs from Kyne. Viewed in this way, Kyne stands for the familiar proposition that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). As we have explained, however, in this case the statute provides us with clear and convincing evidence that Congress intended to deny the District Court jurisdiction to review and enjoin the Board’s ongoing administrative proceedings. IV The Court- of Appeals therefore erred when it held that it had jurisdiction to consider the merits of MCorp’s challenge to the source of strength regulation. In No. 90-913, the judgment of the Court of Appeals remanding the case with instructions to enjoin the source of strength proceedings is therefore reversed. In No. 90-914, the judgment of the Court of Appeals vacating the District Court’s injunction against prosecution of the § 23A proceeding is affirmed. It is so ordered. Justice Thomas took no part in the consideration or decision of these cases. The “source of strength” regulation provides in relevant part: “A bank holding company shall serve as a source of financial and managerial strength to its subsidiary banks and shall not eon[d]uct its operations in an unsafe or unsound maimer.” 12 CFR § 225.4(a)(1) (1991). Section 23A sets forth restrictions on bank holding companies’ corporate practices, including restrictions on transactions between subsidiary banks and nonbank affiliates. See 12 U. S. C. § 371c. See n. 1, supra. In 1987, the Board clarified its policy and stated that a “bank holding company’s failure to assist a troubled or failing subsidiary bank . . . would generally be viewed as an unsafe and unsound banking practice or a violation of [12 CFR § 225.4(a)(1)] or both.” 52 Fed. Reg. 15707-15708. The term “MCorp” refers to the corporation and to two of its wholly owned subsidiaries, MCorp Financial, Inc., and MCorp Management. MCorp timely challenged these orders in the District Court for the Northern District of Texas, pursuant to 12 U. S. C. § 1818(c)(2). The District Court stayed MCorp’s challenge pending resolution of this proceeding. Brief for MCorp et al. 3. The current status of this order is unclear. See Tr. of Oral Arg. 22-25, 41-42. We address only MCorp’s effort to enjoin the Board’s administrative proceedings and express no opinion on the continuing vitality or validity of any of the temporary cease-and-desist orders. Although the several "Notices of Charges and of Hearing" issued by the Board against MCorp relied on FISA and the BHCA, e. g., App. 57, 72, the parties have focused only on the former. We note, however, that the BHCA includes a preclusion provision that is similar to § 1818(i)(1) in F ISA. See 12 U. S. C. § 1844(e)(2). The statute characterizes such review of final Board orders as “exclusive” and provides: “(2) Any party to any proceeding under paragraph (1) may obtain a review ... by the filing in the court of appeals of the United States for the circuit in which the home office of the depository institution 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 agency be modified, terminated, or set aside. . . . 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 paragraph (1) be exclusive, to affirm, modify, terminate, or set aside, in whole or in part, the order of the agency.” 12 U. S. C. § 1818(h)(2) (1988 ed., Supp. II). The referenced exception concerns actions taken by the agency with permission of the court. The automatic stay provision provides in relevant 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 action or 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; “(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; “(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title . . . 11 U. S. C. § 362(a). Title 11 U. S. C. § 362(b)(4) provides: “(b) The filing of a petition under section 301, 302, or 303 of this title, or of an application under section 5(a)(3) of the Securities Investor Protection Act of 1970 (15 U. S. C. 78eee(a)(3)), does not operate as a stay— “(4) under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power .. . .” The Board suggests that the automatic stay provisions of § 362 do not themselves confer jurisdiction on the bankruptcy court, and thus that the filing of a bankruptcy petition operates as an automatic stay only where the bankruptcy court’s jurisdiction has not already been precluded by a statute like § 1818(i)(l). We need not address this question in light of our determination that the automatic stay does not apply to the Board’s ongoing administrative proceedings. Title 28 U. S. C. § 1334(b) provides: “(b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district court shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” That subsection provides: "(d) The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all of the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate." See 29 U. S. C. § 159(b)(l). In Switchmen v. National Mediation Bd., 320 U. S., at 306, the Court had reasoned: “When Congress in § 3 and in § 9 provided for judicial review of two types of orders or awards and in § 2 of the same Act omitted any such provision as respects a third type, it drew a plain line of distinction. And the inference is strong from the history of the Act that that distinction was not inadvertent. The language of the Act read in light of that history supports the view that Congress gave administrative action under § 2, Ninth a finality which it denied administrative action under the other sections of the Act.” The other cases relied upon by the Court of Appeals — Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 (1986); Breen v. Selective Service Local Bd. No. 16, 396 U. S. 460 (1970); and Oestereich v. Selective Service System Local Bd. No. 11, 393 U. S. 233 (1968) — are distinguishable from this litigation for the same reasons. In each of those cases, the Court recognized that an unduly narrow construction of the governing statute would severely prejudice the party seeking review, and construed the statute to allow judicial review not expressly provided. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_district	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". ROCKY MOUNTAIN NATURAL GAS COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 7291. United States Court of Appeals Tenth Circuit. Jan. 28, 1964. Russell P. Kramer of Calkins, Rod-den & Kramer, Denver, Colo., for petitioner. Joseph C. Thackery, Washington, D. C. (Arnold Ordman, Dominick L. Manoli, Marcel Mallet-Prevost and Allison W. Brown, Jr., Washington, D. C., on the brief), for respondent. Before PICKETT, LEWIS and BREITENSTEIN, Circuit Judges. LEWIS, Circuit Judge. This case reaches the court upon the petition of Rocky Mountain Natural Gas Company, Inc., to review and set aside in part an order of the National Labor Relations Board requiring Rocky Mountain to take remedial action for violation of section 8(a) (1) and (3) of the Labor Management Relations Act (29 U.S.C. § 158(a) (1), (3)). The Board cross-petitions for enforcement of its order. Rocky Mountain contends that the record as a whole does not support the Board’s order in those aspects where the Board refused to follow the recommendations of its trial examiner and particularly in regard to the Board finding, contrary to that of the trial examiner, that petitioner had discriminatorily discharged two employees, Welch and Dick, for protected union activity and in violation of section 8(a) (3) of the Act. Rocky Mountain is a Colorado corporation engaged primarily in the distribution of natural gas to industrial and domestic consumers. Prior to 1958 its distribution area was restricted to a limited area on the Western Slope in Colorado. In 1959, Rocky Mountain bought the assets of Domestic Propane Company of Delta, Colorado, a company engaged in the sale of liquified petroleum to like consumers. Rocky Mountain retained the employees of Domestic, chiefly gas-fitters, and thereafter the company operated in divisions. One division, under the regulatory control of the Public Utilities Commission of Colorado, continued the distribution of natural gas; another division, free of state control, continued the sale of propane and also performed the labor necessary to complete conversions in the systems of those consumers who could be persuaded to change from other fuels to natural gas. Separate records were kept by management for each operational division of the company. As was to be expected, more than half of Rocky Mountain’s potential customers converted to natural gas as soon as that fuel became available. Thereafter the number of conversions slackened and the need for labor crews became less for such work. Very few conversions were made during the heating season. In late 1960, the company had to begin transferring funds from other divisions to the propane division in order to meet payrolls and other costs. The propane division had a net operating loss of $14,-229.00 for the year 1961. A study of the over-all conditions led management to the decision to make a transfer of employees and a reduction in the number of employees working as gas-fitters for the propane division in the Delta area. The reduction was originally planned for November, 1961, but was later delayed and was actually effectuated after Christmas. From this broadly stated operational background and supplemented by much detail, the trial examiner found that economic justification existed for a cut in the number of employees working as gas-fitters at Delta; the decision of the Board criticizes but does not reject the finding and the Board decision is not based upon lack of economic need. We unqualifiedly accept the premise of the existence of economic justification for a reduction of force. The premise does not, ipso facto, negative a violation of the Act in the method of accomplishing a reduction in labor force. During the period of operational adjustment and expansion of Rocky Mountain on the Western Slope the employees in the propane division were justifiably concerned about their own welfare and security. The employees were unorganized and were not enjoying some benefits available to employees in other divisions. After rather a prolonged period •of informal discussions among the employees, followed by a series of more formal meetings, a majority of the employees voted to, and did, organize a union in November, 1961. Management, of course, became aware of the employee organizational efforts; and the employees were made aware of the company’s claim of economic distress. Each of the section 8(a) (1) violations premising the Board order is based upon a different incident occurring during this period when conflict of interest seems to be inevitably assumed. The report of the trial examiner analyzes in commendable detail each such incident and concludes that in some instances the conduct of management constituted an unfair labor practice and that in other instances it did not. The Board adopted the report to the extent it determined the existence of violations but rejected the recommendation of the examiner in each instance where the acts of management were reported as not violations. From our examination of the record we note nothing novel or unusual regarding this aspect of the case which would require a detailed discussion of the facts or law. Such discussion is usually profitless. N. L. R. B. v. Twin Table & Furniture Co., Inc., 8 Cir., 308 F.2d 686. Sufficient it is to say that the record as a whole readily supports the order of the Board in those matters in which it follows the report; and, in those matters where it does not, with one rather minor exception, the Board has but drawn different inferences from the evidence. This the Board may do even though the finding of the examiner is not clearly erroneous. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Wichita Television Corp., 10 Cir., 277 F.2d 579. The single exception lies in the finding by the Board that an inquiry made by the company service manager Boyd from the employee Welch as to the names of the union officers was coercive. The trial examiner had found the inquiry to be but casual, without coercive effect in intent or fact, and that at such times Boyd did not have the inherent capacity to coerce Welch. The Board finds the question to be coercive because of the “various other violations by the Respondent.” “Carry-over” intent is an inadequate premise for the determination of a violation of the Act where the accused conduct is inherently innocent and harmless. The record does not support the Board in this particular. The circumstances surrounding the discharge of employees Welch and Dick presents more than a routine controversy. The trial examiner found the discharges to be non-discriminatory and the Board again found otherwise and that a section 8(a) (3) violation was involved. Each finding considers the undisputable facts that both Welch and Dick were qualified workers from a technical view and both were very active in union activities. Dick was president of the Union and Welch was treasurer. And certain it is that the discharge of union officers during a period of union activity when the officers are qualified workers is a circumstance of suspicion which may rise to a justified inference of violative discrimination. But it is equally certain that active union participation by the most qualified employee is not an impenetrable shield against discharge. Union activity cannot be the basis of discharge but active unionists may be discharged for other reasons. E. g., N. L. R. B. v. South Rambler Co., 8 Cir., 324 F.2d 447; N. L. R. B. v. United Parcel Service, Inc., 1 Cir., 317 F.2d 912; N. L. R. B. v. Local 294, International Bhd. of Teamsters, 2 Cir., 317 F.2d 746. And in the case at bar the issue must thus be determined by the degree of significance to be given to Rocky Mountain’s explanation of the reason for the discharge of Welch and Dick. As earlier stated, economic conditions justified a reduction in force of the gas-fitters employed by Rocky Mountain. Witnesses for the company, expressly credited by the trial examiner, explained the plan formulated by management to accomplish the reduction. Each company district in the propane division was assigned a quota of the number of men that could be retained. Each district manager was allowed to select the men he wanted to retain or be transferred to his district. The last district to act under the plan was the district at Delta. The quota for the district was three pipe-fitters. Five were then employed at Delta: Lewis, Chappell, Morris, Welch and Dick. Each was a member of the Union and four were officers. Dick was president, Chappell was vice president, Lewis was secretary and Welch was treasurer. Each of the five was an experienced technical worker. Lewis, Chappell and Morris were retained and Welch and Dick discharged. The witness Sieverson, Delta district manager, testified that he made his selections based upon his opinion of ability, versatility and public relations capacity. He though Welch had some weakness in customer relations and he told of an instance of personal disagreement with Dick regarding a pipe installation where Dick had challenged his judgment. The witness stated unequivocally that union matters had not affected his judgment. The probative force that should be given an examiner’s report reaches its highest significance when an issue turns upon credibility. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. The examiner here credited the testimony of witnesses who completely negatived the claim of discrimination in the discharge of Welch and Dick. Although the operation of the plan resulted in the discharge of two qualified men who were active in union affairs, and thus accomplished a suspect result, it is apparent that the discharge of any two of the five employees would be equally suspect when examined by circumstance alone. The acceptance by the Board of circumstance in view of the trial examiner’s determination of credibility does not find substantial support in the record. The order of the Board is set aside to the extent it finds the Boyd-Welch inquiry to be violative of the Act and the discharge of Welch and Dick to be violative of the Act; in all other regards the petition of the Board for enforcement of its order is granted. . 140 NLRB No. 113. . Rocky Mountain Gas Workers Union, an independent labor organization. At a later time, the members voted to disband their organization. . The Board also added some specific violations which were fully developed as issues at the hearing but which the examiner treated as not within the charges. We find no error in this regard 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_circuit	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. JARKA CORPORATION v. REDERII. No. 3443. Circuit Court of Appeals, First Circuit. Feb. 7, 1940. Forrest E. Richardson and Robinson & Richardson, all of Portland, Me., for appellant-respondent. Nathan W. Thompson, of Portland, Me., for appellee-libellant. •Before WILSON and MAGRUDER, Circuit Judges, and FORD, District Judge. PER CURIAM. This is an appeal from a decree overruling exceptions to a libel in admiralty. Appeals lie, not from all interlocutory decrees in admiralty, but only from such interlocutory decrees as determine “the rights and liabilities of the parties.” 44 Stat. 233, 28 U.S.C.A. § 227. The decree below merely determines that the libel states a good cause of action. It does not determine the rights and liabilities of the parties, because at the trial the libellant may fail to prove his case. Stark v. Texas Co., 5 Cir., 1937, 88 F.2d 182; The Maria, 2 Cir., 1933, 67 F.2d 571; see Schoenamsgruber v. Hamburg Line, 1935, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989; H. Lissner & Co., Inc., v. Oceanic Steam Navigation Co., 2 Cir., 1929, 30 F.2d 290. The appeal is dismissed for lack of jurisdiction. 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_jurisdiction	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer". Abraham BENJAMINS, as Personal Representative of the Estate of Hilde Ben-jamins, Deceased, Plaintiff-Appellant, v. BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd., and Hawker Siddeley Group, Ltd., Defendants-Appel-lees. No. 111, Docket 77-7201. United States Court of Appeals, Second Circuit. Argued Oct. 21, 1977. Decided March 6, 1978. Van Graafeiland, Circuit Judge, filed dissenting opinion. Ronald L. M. Goldman, Marina del Rey, Cal. (Ronald L. M. Goldman & Associates, Marina del Rey, Cal., on brief), for plaintiff-appellant. George N. Tompkins, Jr., New York City (Condon & Forsyth, Ronald E. Pace and Michael J. Holland, New York City, on brief), for defendant-appellee British European Airways. James J. Finnerty, Jr., New York City (Mendes & Mount, New York City, on brief), for defendant-appellee Hawker Siddeley Aviation, Ltd. Before LUMBARD, FEINBERG and VAN GRAAFEILAND, Circuit Judges. LUMBARD, Circuit Judge: This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions to answer that question in the negative. We reverse. I On June 18, 1972, a Trident 1 Jet Aircraft — designed and manufactured by Hawker Siddeley Aviation, Ltd. [“HSA”], and owned and operated by British European Airways [“BEA”] — took off for Brussels from London’s Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Ange-les, and clearly provided “international transportation” within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding. This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow’s estate, on behalf of himself and the children of the marriage. Benjamins’ action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P. M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows: Article 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air. Dismissed once for lack of subject matter jurisdiction — only diversity was originally alleged — the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well. After both sides had submitted briefs, Judge Weinstein ruled that this suit did not “arise” under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed. II The first question we address is whether any court in this country has jurisdiction in the “international or treaty sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider “the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” Id. Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that [a]n action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination. The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent’s round-trip ticket provided for an ultimate destination in the United States. Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit — permitted by the first and second alternatives of Article 28(1) — as are the state courts of California. Plaintiff’s burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so. Ill The two bases for federal jurisdiction pleaded in Benjamins’ amended complaint are the Alien Tort Claims Act, 28 U.S.C. § 1350, and a general federal question “arising under” a treaty. The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins’ complaint alleges a violation of neither the law of nations nor any treaty of the United States. The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not “violate” the Convention when they crash — even if their negligence was “wilful” — but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations. Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) : “a violation ... of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976) . This law does not include a prohibition of air crashes. IV Accordingly, we must determine whether any of the causes of action pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer. A At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953). The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957): The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself. Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967). The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02. Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote: The effect of article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier. [1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action. In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komios, which, we said, had “impliedly agreed” with Judge Leibell. 247 F.2d at 679. Though most of our opinion in Noel was devoted to disapproving Judge Leibell’s suggestion that Article 17 might create a cause of action for wrongful death where domestic law did not, it is apparent that — however founded— Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y.1975). Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated — without addressing the question in the instant case — that “the Convention was intended to act as an international uniform law,” id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law. B 1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law. What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see Articles 21, 24(2), 28(2)). The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the “prospect of a junglelike chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by Article 28 to hear his claim, it is inconsistent with its spirit. This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966). 2. Other articles of the Convention throw some light on the question whether Articles 17 and 18 create causes of action. Article 30(3) provides that in the case of transportation by several carriers constituting one undivided transportation, [a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place. . The most reasonable interpretation of this section is that Articles 18 and 30(3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964): “Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.” There is no reason to believe that the Convention’s effect is any different when only one carrier is involved. Article 24 has been cited by proponents of both views of the Convention. In the French version — the only official version— the Article reads: (1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention. (2) Dans les cas prévus á l’article 17, s’ap-pliquent également les dispositions de l’alinéa précédent . The unofficial translation reads: (1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention. (2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply. . The crucial phrases, of course, are “however founded” (“a quelque titre que ce soit”), and “conditions” (“conditions”). There is no internal evidence to indicate whether “however founded” was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action. As to “conditions,” that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates’ meaning, and that “basis” or “terms” would be a closer translation in this context of “conditions.” Calkins, supra, 26 J. Air L. & Comm, at 225-26. The arguments as to Article 24 are not conclusive either way. 3. More compelling is the evidence of how other signatories of the Convention have interpreted its provisions. The clearest picture is found in other common-law jurisdictions. In the statute enacting the original 1929 Convention in the United Kingdom, it was provided that [a]ny liability imposed by Article seventeen of the said [Warsaw Convention] on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any statute or at common law . ... Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, § 1(4). When the Convention was reenacted as amended at the Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2, c. 27, this language was omitted, but there is no indication that any change of substantive law was intended. No case law since 1962 has demonstrated that the source of carrier liability lies anywhere but in the Convention. See also Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada). V The fact that a proposition of law has been accepted for some twenty years is evidently a sign that circumspection is needed in seeking to overturn that proposition. We recognize that our holdings in Komlos and Noel have become the rule not of this circuit alone, but of others as well. See, e. g., Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are convinced that — in light of both the paucity of analysis that accompanied the creation of the rule and the strong arguments in favor of the opposite rule — the Komlos/Noel rule ought no longer to be followed. We do not believe that the passing remark of Secretary Hull in a lengthy letter was intended to state the total of what Article 17 might provide; we do not see what there was about our decision in Kom-los that constituted implicit agreement with Judge Leibell, and compelled the result in Noel; we do not find technical and disputable interpretations of the language of other articles of the Convention conclusive in determining this important question of policy. We do, on the other hand, believe that the desirability of uniformity in international air law can best be recognized by holding that the Convention, otherwise universally applicable, is also the universal source of a right of action. We do see that uniformity of development can better be achieved by making federal as well as state courts accessible to Convention litigation. We do find the opinions of our sister signatories to be entitled to considerable weight. One factor which makes federal jurisdiction peculiarly appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states. Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331. VI Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA. Reversed and remanded for further proceedings consistent with our opinion. . Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention]. . Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention. . Jurisdiction over HSA is alleged under principles of pendent jurisdiction. . Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court. . Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3. . The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. . But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1944). . Some commentators, at least, have attributed this to its being taken for granted that the Convention itself supplied the cause of action. E. g., Lowenfeld & Mendelsohn, supra, 80 Harv. L.Rev. at 517. A stronger statement comes from the Chairman of the United States Delegation to the Hague Conference to Amend the Warsaw Convention, G. Nathan Calkins: [T]he author is convinced that the draftsmen of the Convention intended to create a right-of-action based on the contract of carriage; that the draftsmen did in fact carry this intention out in the Convention as signed; that it is self-executing; and therefore the supreme law of the land today. Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Comm. 217, 218 (1959). . We note that, after Noel, not even the total lack of an appropriate cause of action at domestic law would permit an action to be founded on the Convention itself. Question: Did the court determine that it had jurisdiction to hear this case? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state	39	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". The UNITED STATES v. Philip Henry OLECK and David Bedell. Appeal of David BEDELL. No. 89-3461. United States Court of Appeals, Third Circuit. Submitted Oct. 10, 1989. Decided Jan. 25, 1990. David Bedell, Elgin, Fla., pro se. Paul J. Brysh, Asst. U.S. Atty., Pittsburgh, Pa., for appellee. Before BECKER, GREENBERG and VAN DUSEN, Circuit Judges. OPINION OF THE COURT BECKER, Circuit Judge. This appeal presents the same question as that posed in the companion case, United States v. Gozlon-Peretz, 894 F.2d 1402 i.e. whether the district court had authority to impose a term of supervised release for a sentence imposed pursuant to 21 U.S.C. § 841(b)(1) for an offense committed after October 27, 1986, the date of enactment of the Anti-Drug Abuse Act of 1986 (ADAA), but before November 1, 1987, the effective date of ADAA section 1004. Appellant David Bedell was convicted under § 841(b)(1)(B) for an offense committed on July 1, 1987. He was sentenced on December 8, 1987, to a term of five years of imprisonment, followed by four years of supervised release. Bedell argues that neither special parole nor supervised release was available for offenses committed on that date. Bedell differs from appellant Gozlon-Peretz in that Gozlon-Peretz was convicted under § 841(b)(1)(A), not § 841(b)(1)(B). This difference could be seen as crucial because the Comprehensive Crime Control Act, Pub.L. No. 98-473, 98 Stat. 1837, 1976 (1984) (“the Act”), apparently inadvertently, left out both special parole and supervised release for the newly created § 841(b)(1)(A) offenses. Bedell was sentenced under § 841(b)(1)(B), which contained a special parole term. Thus, as the fourth, fifth, and eleventh circuits have done, see United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988), United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.1988), and United States v. Smith, 840 F.2d 886 (11th Cir.1988), we could rule that because special parole was available in § 841(b)(1)(B), and because it is not clear when Congress meant the ADAA amendments to the Act to go into effect, Bedell should be sentenced to a special parole term. However, for the reasons set forth in Gozlon-Peretz, we believe that the correct reading of the ADAA is that supervised release replaced special parole in §§ 841(b)(1)(A), (B) and (C) as of the date of the ADAA’s enactment, October 27, 1986. Therefore, we hold that supervised release was the proper sentence. The government, after a change of position, apparently agrees with that result in this case. The judgment of sentence will be affirmed. . Section 1002 of the ADAA replaced old §§ 841(b)(1)(A), (B) and (C) with new provisions that included supervised release terms, not special parole terms. 100 Stat. 3207-2 to 3207-4 (1986). Section 1004(a) of the ADAA substituted "supervised release” for all remaining "special parole” offenses. Section 1004(b) explicitly linked section 1004's effective date to the effective date of the Sentencing Reform Act, November 1, 1987. See 100 Stat. at 3207-6. . Appellant contends that he should be treated as having violated § 841(b)(1)(A) because he was charged with distribution of over 500 grams of cocaine. Section 841(b)(1)(A) carries a higher penalty. However, we can decide the case only on the basis of the charge in the indictment. Bedell can hardly complain that he was charged with an offense that carries a lesser penalty. . The § 841(b)(1)(B) under which Bedell was sentenced was the exact same provision as the “old” (pre-Act) § 841(b)(1)(A). The Act redesig-nated old §§ 841(b)(1)(A) and (B) as new §§ 841(b)(1)(B) and (C), respectively. 98 Stat. at 2068. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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". STANDARD OIL COMPANY (INDIANA), Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 71-1170. United States Court of Appeals, Seventh Circuit. Argued Jan. 28, 1972. Decided July 12, 1972. Lee I. Park, Glenn L. Archer, Jr., Washington, D. C., for petitioner-appellant. Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Chief, Appellate Section, John A. Townsend, Grant Wiprud, Attys., Tax Division, U. S. Department of Justice, Washington, D. C., Johnnie M. Walters, Asst. Atty. Gen., for respondent-appellee. Before SWYGERT, Chief Judge, and KILEY and STEVENS, Circuit Judges. STEVENS, Circuit Judge. Taxpayer contends that its receipts of $597,596.49 and $606,122.22 in 1958 and 1959, respectively, were taxable as proceeds of sale, subject to capital gains treatment, rather than as income subject to a depletion allowance. The payments were made on account of a potential obligation of up to $134,619,089.76, payable, without interest, over an indeterminate period of time according to formulas based upon the production of gas from certain interests which the taxpayer conveyed to the obligor in 1955. The tax treatment of the payments depends on whether taxpayer retained • an “economic interest” in the properties after the original arrangement between the parties was modified in 1958. The tax court rejected the contention that the “economic interest” concept, as limited by the Supreme Court in Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277, does not encompass taxpayer’s retained interest in the gas in place because its right to future payment does not depend “solely” on extraction of the gas. 54 T.C. 1099. As in Anderson, taxpayer argues that an “additional type of security for the deferred payments” converted what otherwise would have been production payments into proceeds of sale. We first state the essential facts and then our understanding of Anderson. I. Prior to March 15, 1955, taxpayer had acquired a large number of valuable oil and gas leases in the San Juan Basin in New Mexico and Colorado. Generally speaking, those leases were either for a term of years or for such period as oil or gas could be produced; taxpayer’s interest was subject to a landowner’s royalty on the proceeds from the sale of oil or gas produced. On March 16, 1955, taxpayer entered into six agreements conveying certain interests in 564 of those leases to Pacific. Each conveyance was limited to specified geological formations thought to be gas-bearing only. Taxpayer retained oil and gas rights in remaining formations and also the benefit of any oil that might be discovered in the specific formations covered by the agreements. No surface rights were involved. Pursuant to the 1955 agreements, Pacific reimbursed taxpayer for its investment in facilities and productive gas wells. In addition, Pacific agreed to pay taxpayer periodic amounts based on “the volume of gas produced and attributable to” the interests assigned to Pacific. To secure the payments, taxpayer was given a prior lien on all production from the properties. Pacific further agreed to make certain minimum payments computed on the basis of the capacity of the wells regardless of the volume of gas actually produced, and to give taxpayer the benefit of the oil content of any of the wells. It undertook to develop the gas rights at least as rapidly as it developed other properties which it had acquired in the same general area. In the event Pacific failed to meet any of its obligations, it was required to ' reassign its interest in the leases to taxpayer. Pacific was also entitled to reassign any portion of its rights which it determined could not be economically developed. The 1955 agreements specifically prohibited Pacific from assigning any of its rights in the leases to any third party without the prior consent of taxpayer. Although the witness Connor, who negotiated these agreements on behalf of taxpayer, testified that he thought he was selling real estate and that the proceeds would be taxed at capital gains rates, taxpayer's accounting department treated the payments received during 1955, 1956 and 1957 as ordinary income subject to depletion. Taxpayer does not question the propriety of that treatment of the payments received in those years. It does contend, however, that the Modification Agreements which Mr. Connor subsequently negotiated .changed the character of the transaction for the period subsequent to January 1, 1958. The Modification Agreements were specifically intended to obtain a tax benefit for the taxpayer. As a business proposition, those agreements had the effect of limiting the amount of money which taxpayer might receive on account of the transfer of its interests to Pacific and of ' granting Pacific certain additional privileges. Under the 1955 agreements there was no limit (except that imposed by nature on the volume of gas which might be extracted economically) on the amount which taxpayer might receive from Pacific, whereas under the 1958 modification the parties agreed to a limit of $134,619,089. The original agreements flatly prohibited any transfer of Pacific’s interest without the prior consent of taxpayer, whereas the modifications permitted such assignment to a third party, subject to all conditions contained in the existing agreements, provided that Pacific was required to pay to taxpayer 50% of the consideration received from any such assignment. Any such payment would be applied to reduce the balance then owed the taxpayer by Pacific. Connor testified that he had negotiated the maximum payout of- $134,619,089 on the basis of actual payments which had already been made and estimates of total gas available. He had estimated that a full payout under the agreements as modified would require gas production until 1990, and that Pacific would then be left with obligation-free reserves of approximately 800,000 million cubic feet. These calculations assumed that the total amount of gas then available was over 1,800,000 million cubic feet. The tax court found that it was not possible to make a reliable determination as to the precise number of years required to pay the total consideration, but stated that a reasonable estimate would have been between 50 and 100 years. Moreover, the court found that on the basis of revised estimates of the reserves made in 1960, there would not have been a sufficient supply of gas to pay the total consideration of $134,619,089. Since the Modification Agreements gave Pacific the right to sell its interest in the leases to a third party, and since taxpayer acquired a right to receive half of the proceeds of such a sale, it contends that after January 1, 1958, it did not look solely to the extraction of gas for the return of its investment and it therefore no longer retained an economic interest in the leases. The tax court considered the likelihood of sale to a third party on terms which would result in payments to taxpayer on any basis other than on account of gas production pursuant to the contract formulas as too remote to have any legal significance. In this court taxpayer argues at length that antitrust proceedings in which the parent of Pacific was involved had created a significant likelihood of a forced sale. Alternatively, taxpayer argues that under Anderson the degree of probability of recovery from a source other than extraction of gas is irrelevant as long as the legal instruments created such a possibility. We have analyzed the issue in two different ways; both lead us to conclude that taxpayer retained an economic interest in the gas rights. We first assume, as taxpayer argues, that the tax court incorrectly appraised the likelihood of a sale of Pacific’s interest, and further, that there is a significant possibility that such a sale would result in a substantial cash payment to taxpayer. We shall then explain why we think the remoteness of that possibility confirms our conclusion that taxpayer has retained an economic interest in the gas rights notwithstanding the Modification Agreements in 1958. II. Unlike the owners of most kinds of capital assets who may recover their investment by depreciation deductions, the owner of a capital interest in minerals in place receives a depletion deduction as compensation for the disposition of his capital. As long as he retains a legal interest in the wasting asset, he realizes income subject to depletion, rather than capital gains, from its disposition. Burnet v. Harmel, 287 U.S. 103, 108-109, 53 S.Ct. 74, 77 L.Ed. 199. Even if he retains no legal interest as a matter of state law, the same consequence follows if, as a matter of federal tax law, he retains an “economic interest” in a depletable asset. That term was first used in Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489. In that case, the Court held that the transferor of an interest in oil leases, who received a cash bonus, a production payment, and an excess royalty, could claim a depletion deduction on the amounts received, even though he retained no legal interest in the oil as a matter of local law. “The language of the statute is broad enough to provide, at least, for every case in which the taxpayer has acquired, by investment, any interest in the oil in place, and secures, by any form of legal relationship, income derived from the extraction of the oil, to which he must look for a return of his capital. * -K * * * * “Similarly, the lessor’s right to a depletion allowance does not depend upon his retention of ownership or any other particular form of legal interest in the mineral content of the land. It is enough if, by virtue of the leasing transaction, he has retained a right to share in the oil produced. If so, he has an economic interest in the oil, in place, which is depleted by production. Thus we have recently held that the lessor is entitled to a depletion allowance on bonus and royalties, although by the local law ownership of the minerals, in place, passed from the lessor upon the execution of the lease. See Burnet v. Harmel, supra; Bankers’ Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 53 S.Ct. 150, 77 L.Ed. 325.” In subsequent cases, the economic interest concept was used to differentiate between capital and income transactions. If a transferor retains an “economic interest” in mineral rights, as a matter of federal tax law he has not made a sale of those rights regardless of how the transaction is classified under state law. Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 328 U.S. 25, 32-36, 66 S.Ct. 861, 90 L.Ed. 1062; see also Commissioner of Internal Revenue v. P. G. Lake, Inc., 356 U.S. 260, 264-265, 78 S.Ct. 691, 2 L.Ed.2d 743. In Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277, the transferee of certain royalty interests, fee interests, and deferred oil payments in property in Oklahoma contended that he had not made a purchase because the transferor had retained an economic interest in the property. The conveyance was absolute as a matter of Oklahoma law, but inasmuch as the deferred portion of the purchase price was payable from one-half of the proceeds to be received by the transferee from his disposition of the properties, he argued that the vendor continued to have an economic interest in the assets until payment was completed. Accordingly, the taxpayer claimed that the consideration paid for the assets was income to the transferor and deductible by the transferee. The Supreme Court held that the Commissioner had properly disallowed the deduction because the transferor was not dependent “entirely” on production of oil for the deferred payments; they might also be derived from sales of the fee title to the land conveyed. In this case, taxpayer contends that after the execution of the 1958 Modification Agreements it was no longer dependent entirely on the extraction of gas for future payments by Pacific; they might also be derived from one-half of Pacific’s share in the proceeds of a possible sale of the gas rights. Under the reasoning of the Anderson opinion, taxpayer therefore argues that the assignment privilege granted to Pacific in 1958 destroyed taxpayer’s economic interest in the gas rights. Although this contention is supported by later opinions referring to the requirement that the taxpayer must look “solely” to the extraction of oil or gas for the return of his capital in order to find that he has an economic interest in the minerals in place, we reject taxpayer’s interpretation of the Anderson opinion. Under taxpayer’s interpretation, the economic interest survives as long as he has a right to be paid solely as a result of production, but the interest is extinguished if the transferor also retains a right to share in the proceeds of a possible resale. That interpretation is consistent with the fact that the alternate source of payment in Anderson was the proceeds of sale of the fee interests which had been conveyed as part of the package which included the mineral rights. Fairly read, however, we believe the Anderson opinion’s reference to “additional security” contemplates reliance on a source of payment other than the depletable asset itself. As we construe the emphasis on the “fee title to the land conveyed” in Anderson, it attaches importance to the existence of rights in the nondepletable surface rather than to the fact that the conveyance gave the transferee complete ownership of the wasting assets. A contrary interpretation would be inconsistent with Palmer v. Bender because in that case the Court held that a transfer of complete ownership as a matter of local law did not terminate the transferor’s economic interest in the transferred assets. See 287 U.S. at 556-558, 53 S.Ct. 225. Two comments in the Anderson opinion support this interpretation. The Court compared the economic importance of the reservation of an interest in the fee to a personal guarantee of the credit of the transferee; in short, other assets — -not merely a different disposition of the same asset — would provide security for the deferred obligation. Moreover, in its review of the facts in Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324, the Court noted that the transferor’s right to payments solely out of production was in the nature of “a reservation from the granting clause” of sufficient oil to make the payments. Such a reservation identifies the asset in which the transferor retains an economic interest; it certainly does not imply that a transferee’s decision to reconvey to another producer, instead of producing himself, would impair that interest. We therefore interpret Anderson as requiring that the “additional security” relate to assets other than the specific rights transferred. This interpretation is supported by persuasive authority. III. Notwithstanding the Court’s occasional use of the words “entirely” and “solely,” it is also reasonable to assume that the alternate source of payout must have some substantial economic significance. In the Anderson case the record did not disclose what portion of the transferee’s gross proceeds was derived from the production and sale of oil and gas and what portion, if any, was derived from the sale of land. But in that case the burden was upon the transferee taxpayer to support his claim that the entire purchase price would be paid to the transferor from the production of oil and therefore that he could exclude the amount paid from his gross income. In the absence of evidence that the surface rights were worthless, or perhaps only of nominal value, it is reasonable to infer from the form of the transaction that the parties, and the court, considered the surface rights significant. The additional security in this case, is, as a practical matter, insignificant because of the improbability that any cash will be realized from it. As we noted above, taxpayer argues at length that pending antitrust proceedings made it likely, contrary to the tax court’s conclusion, that Pacific would be forced to sell its interests. Although the tax court’s assessment of probabilities was adequately supported by the record before it, we accept, for the sake of argument, taxpayer’s assertion that the antitrust proceedings against El Paso Natural Gas Co., which had acquired Pacific, might reasonably have led to the sale of Pacific’s properties. This does not, however, mean that there is a likelihood that there will be significant cash proceeds payable to Standard. The terms of the Modification Agreements provide that the “50 percent of the proceeds” provision does not apply to assignments made by Pacific pursuant to the provisions of certain mortgages or deeds of trust or to assignments made as part of any corporate reorganization or merger or to any assignment made to a parent or subsidiary corporation of Pacific. Thus, there is ample flexibility to structure a retransfer to satisfy both the antitrust laws and the exclusionary language of the Modification Agreements. The total $134,000,000 obligation is interest free. It is improbable that Pacific and an arm’s length buyer would agree on terms which would include the payment of a significant amount of cash to obtain the premature discharge of an interest free obligation. Thus, for two independent reasons, we hold that taxpayer’s reliance on Anderson is misplaced. First, the possibility that Pacific’s interest in the gas rights conveyed to it by taxpayer will be resold to a third party and a share of the sale proceeds paid to taxpayer does not diminish — or extinguish —taxpayer’s economic interest in those gas rights; the value of its right to deferred payments is dependent “solely” and “entirely” on the expectation of future' production or conversely, on the risk of nonproduction before it has received a full payout of $134,619,089. Furthermore, the “additional security” in this case does not meet the requirement of “significance” which we believe the rationale of Anderson requires. The record persuades us that the possibility of a purchase of Pacific’s rights by a third party on terms which would in fact give the taxpayer any accelerated recovery is too remote to be considered significant or substantial. We therefore hold that taxpayer’s economic interest in the gas formations in the San Juan Basin, which was retained notwithstanding the conveyances to Pacific in 1955, also survived the 1958 Modification Agreements. The judgment of the tax court is affirmed. . Since consolidated returns were filed for the years involved, we use the term “taxpayer” to include Standard Oil Company (Indiana) and its subsidiary Pan American Petroleum Corporation, which was the actual party to most of the agreements involved herein and which was formerly known as Stanolind Oil & Gas Company. . Pacific Northwest Pipeline Corporation. . Apparently the Modification Agreements contemplated that any such payment would be made promptly, but the time of payment is not specifically stated. Moreover, Pacific was not required to pay any portion of the consideration which it might receive for any assignment to a parent or subsidiary of Pacific, or for an assignment made as a part of any corporate reorganization or merger. . The tax court found that during the years 1955 through 1968 not quite 118,000 million cubic feet of gas had been produced and only $9,649,329 had been paid to taxpayer. In other words, in 14 years only about 6%% of the reserves as estimated by Connor had been extracted. Nevertheless, for purposes of decision we assume that the reserves would have had a residual value to Pacific after the complete payout of $134,819,089 to taxpayer. . Section 611(a) of the Internal Revenue Code of 1954 authorizes as a deduction in computing taxable income, in the case of oil and gas wells and other natural deposits, an allowance for depletion “in all cases to be made under regulations prescribed by the Secretary or his delegate.” This allowance “is based on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit,” and “is designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 312, 76 S.Ct. 395, 397, 100 L.Ed. 347. . Treasury Regulations on Income Tax (1954 Code) (26 C.F.R.): “§ 1.611-1 Allowance of dedtiction for depletion, * * * * * “(b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing-timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital.” . See Sneed, The Economic Interest — An Expanding Concept, 35 Texas L.Rev. 307, 309 (1957). . 287 U.S. at 558, 53 S.Ct. at 226. The Court continued: “Thus throughout their changing relationships with respect to the properties, the oil in the ground was a reservoir of capital investment of the several parties, all of whom, the original lessors, the two partnerships and their transferees, were entitled to share in the oil produced. Production and sale of the oil would result in its depletion and also in a return of capital investment to the parties according to their respective interests. The loss or destruction of the oil at any time from the date of the leases until complete extraction would have resulted in loss to the partnerships. Such an interest is, we think, included within the meaning and purpose of the statute permitting deduction in the case of oil and gas wells of a reasonable allowance for depletion according to the peculiar conditions in each case.” . The consideration as described by the Court, was “one hundred sixty thousand dollar's, payable fifty thousand in cash and one hundred ten thousand from one-half of the proceeds received by him which might be derived from oil and gas produced from the properties and from the sale of fee title to any or all of the land conveyed. Interest at the rate of 6% per annum was to be paid from the proceeds of production and of sales upon the unpaid balance.” 310 U.S. at 405-406, 60 S.Ct. at 953. . “The reservation of an interest in the fee, in addition to the interest in the oil production, however, materially affects the transaction. Oklahoma Company is not dependent entirely upon the production of oil for the deferred payments; they may be derived from sales of the fee title to the land conveyed.” 310 U.S. at 412, 60 S.Ct. at 956. . See Commissioner of Internal Revenue v. Southwest Exploration Co., 350 U.S. 308, 314, 76 S.Ct. 395, 100 L.Ed. 347. . The Court apparently assumed, since the burden was on the taxpayer to establish otherwise, that the interest in surface rights was significant. See part III of this opinion, infra. . “We are of opinion that the reservation of this additional type of security for the deferred payments serves to distinguish this case from Thomas v. Perkins [, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324], It is similar to the reservation in a lease of oil payment rights together with a personal guarantee by the lessee that such payments shall at all events equal the specified sum.” 310 U.S. at 412-413, 60 S.Ct. at 956. (Emphasis added.) . After stating the facts of Thomas v. Perkins in some detail, 310 U.S. at 409-410, 60 S.Ct. at 954-955, the Court concluded (at 411, 60 S.Ct. at 955): “Accordingly, this Court in Thomas v. Perkins decided that the provision in the lease for payments solely out of oil production should be regarded as a reservation from the granting clause of an amount of oil sufficient to make the agreed payments, and should be given the same tax consequences as a provision for oil royalties. The decision did not turn upon the particular instrument involved, or upon the formalities of the conveyancer’s art, but rested upon the practical consequences of the provision for payments of that type. See Palmer v. Bender, 287 U.S. 551, 555-557, 53 S.Ct. 225, 77 L.Ed. 489; Burnet v. Harmel, 287 U.S. 103, 111, 53 S.Ct. 74, 77 L.Ed. 199.” . We give special deference to the views of the Fifth Circuit which has considered the issue on several occasions. See Weinert’s Estate v. Commissioner of Internal Revenue, 294 F.2d 750, 763-764 (1961); Commissioner of Internal Revenue v. Estate of Donnell, 417 F.2d 106, 115 (1969); Christie v. United States, 436 F.2d 1216, 1220-1221 (1971). See also Sneed, supra, n. 7, at 333. . The whole economic interest concept was developed as a substitute for technical and legalistic analysis of varying state law conveyancing requirements (see, e. g., Burnet v. Harmel, 287 U.S. 103, 109-111, 53 S.Ct. 74, 77 L.Ed. 199; Bankers Pocahontas Coal Co. v. Burnet, 287 U.S. 308, 310-311, 53 S.Ct. 150, 77 L.Ed. 325, which clearly anticipated Palmer v. Bender, 287 U.S. 551, 555-558, 53 S.Ct. 225, 77 L.Ed. 489); the concept reflects a realistic appraisal of economic risks. “In dealing with what constitutes a sale for capital gains purposes, this Court has been careful to look through formal legal arrangements to the underlying economic realities. “In Thomas v. Perkins, 301 U.S. 655, 57 S.Ct. 911, 81 L.Ed. 1324, . . . . [the] risks run by the transferor of making or losing money from the oil were shifted so slightly by the transfer that no § 1222(3) sale existed, notwithstanding the fact that the transaction conveyed title as a matter of state law, and once the payout was complete, full ownership of the minerals was to vest in the purchaser.” Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 585, 85 S.Ct. 1162, 1173, 14 L.Ed.2d 75 (Mr. Justice Goldberg dissenting). See also Burton-Sutton Oil Co. v. Commissioner of Internal Revenue, 328 U.S. 25, 34-35, 66 S.Ct. 861, 90 L.Ed. 1062. . See 310 U.S. at 406-407, n. 3, 60 S.Ct. at 953. The Court said that “[t]he record does not indicate what portion of the gross proceeds was derived from production and sale of oil and gas and what portion, if any, was derived from sales of fees and from royalties on leases.” Id. 'It was agreed that the amount in dispute — the amount the transferee taxpayer attempted to exclude from his gross income — all came from oil production. The Court thus apparently recognized that part of the payment made, which exceeded the claimed deficiencies, might have come from proceeds of sales of the fee which the taxpayer did not attempt to exclude and which was, therefore, not part of the dispute before the Court. . The court stated that the reservation of an interest in the fee “materially affects the transaction.” 310 U.S. at 412, 60 S.Ct. 952, quoted in note 10, supra. . In Anderson the Court explained that the application of the economic interest concept to the fee interests would produce “double depletion.” Accordingly, the parties in this case have argued at some length the question whether double depletion would follow a sale of Pacific’s rights to a third party. Assuming the existence of such a possibility, we do not consider it of vital importance to the question we have decided. The government argues that since any amount paid by a third party to purchase Pacific’s interest would be based on anticipated production, that the portion which Pacific pays to Standard should be considered as an acceleration of the third party’s payments to Standard through Pacific as a conduit and be treated in the same manner as advance royalties. Thus, 50 percent of the purchase price would be excludable from the third party’s gross income and would be subject to depletion allowance in the hands of Standard. At this time, we express no opinion on the government’s proposed treatment of a tax situation based on a contingency that will probably never come to pass. 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_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. The C.M. THIBODAUX CO., LTD., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 89-3717. United States Court of Appeals, Fifth Circuit. Oct. 26, 1990. David Bruce Spizer, New Orleans, La., for plaintiff-appellant. Steven Gremminger, Trial Atty., Tax Div., U.S. Dept, of Justice, Ernest J. Brown, Laura Marie Conley O’Hanlon, Ann B. Durney, and Gary R. Allen, Chief, Appellate Section, Tax Div., Dept, of Justice, Washington, D.C., for defendant-appellee. Before GEE, RUBIN and DAVIS, Circuit Judges. W. EUGENE DAVIS, Circuit Judge: The C.M. Thibodaux, Co., Ltd. (Thibo-daux) appeals a summary judgment denying it recovery of federal income taxes and interest paid under protest. Thibodaux had transferred to its shareholders the right to receive bonuses and delay rentals from mineral leases on corporate property. The district court held that this transfer was an anticipatory assignment of Thibo-daux’s income and therefore the income from the bonuses and delay rentals was taxable to it. We find no error and affirm. I. Thibodaux is a corporation formed to purchase, hold, manage, and sell real estate and other property for its shareholders. In 1976 Thibodaux declared a dividend in kind to its shareholders of all outstanding and future mineral royalties on corporate-owned property. In 1981 Thibodaux amended the Royalty Deed to grant to its shareholders the right to receive all bonuses and delay rentals as well as royalties. Thibodaux expressly retained the right to negotiate and enter into future mineral leases “without reference to or consultation with grantees.” Pursuant to the amended Royalty Deed, Thibodaux’s mineral lessees paid all royalties, bonuses, and delay rentals directly to Thibodaux shareholders. The shareholders included these payments in their gross income and have paid federal income tax on this income. To avoid back taxes and interest if the IRS determined that the bonus and delay rental payments should have also been included in its corporate income, Thi-bodaux included those payments in its income and paid taxes on them under protest. After the IRS denied Thibodaux’s claims for refund for the years in question, Thibo-daux sued the United States in district court to recover the money it allegedly overpaid. Thibodaux argued that the transfer of the right to bonuses and delay rentals was a transfer of income-producing property under Louisiana law and therefore not taxable to it. The IRS contended that the transfer was an anticipatory assignment of Thibodaux’s income for which it should be taxed. The district court granted the United States’ motion for summary judgment holding the income taxable to Thibodaux, 723 F.Supp. 367, and Thibodaux lodged this appeal. II. A. A fundamental tenet of federal income taxation is that income is taxable to the one who earns it. United States v. Basye, 410 U.S. 441, 449, 93 S.Ct. 1080, 1085, 35 L.Ed.2d 412 (1973); Commissioner v. Culbertson, 337 U.S. 733, 739-40, 69 S.Ct. 1210, 1212-13, 93 L.Ed. 1659 (1949); see also I.R.C. § 61(a)(5) (taxable “gross income means all income from whatever source derived, including ... rents”). An essential corollary of this principle is that “one who earns income cannot escape tax upon the income by assigning it to another.” Caruth Corp. v. United States, 865 F.2d 644, 648 (5th Cir.1989); see also Basye, 410 U.S. at 449, 93 S.Ct. at 1085 (“The entity earning the income ... cannot avoid taxation by entering into a contractual arrangement whereby that income is diverted to some other person or entity.”). Thus after a contractual transfer, the question becomes whether the transferor taxpayer “earned” any income such that it may be taxed for it. The assignment of income doctrine had its genesis in Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930). In Earl, the taxpayer husband contracted with his wife that they would share all property, including income from future personal services. Id. at 113-14, 50 S.Ct. at 241. Consistent with this contract, the taxpayer reported only half of the salary he earned as an attorney. Although the Supreme Court assumed that the contract’s validity was “unquestionable under the law of the state of California, in which the parties lived,” it nevertheless held that the taxpayer was taxable on his entire salary and fees. Id. at 114, 50 S.Ct. at 241. Justice Holmes observed that taxes on income earned “could not be escaped by anticipatory arrangements and contracts however skilfully devised to prevent the [income] when paid from vesting even for a second in the [one] who earned it.” Id. at 115, 50 S.Ct. at 241. Likewise in Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940), the Supreme Court held that a taxpayer father who retained ownership of bonds was taxable on bond interest coupons he had given to his son. The Court held that father could not avoid paying tax on the interest on his bonds by assigning his right to receive the interest income to his son. The Horst Court cited the metaphor coined by Justice Holmes in Lucas v. Earl that “the fruit is not to be attributed to a different tree from that on which it grew.” Id. at 120, 61 S.Ct. at 149 (citing Earl, 281 U.S. at 115, 50 S.Ct. at 241). In a similar case to the one at bar, the lessee paid rent directly to shareholders of a lessor corporation as required by the contract between the lessor and lessee. The Supreme Court held these payments were taxable to the corporation as income. United States v. Joliet & C.R.R., 315 U.S. 44, 46, 62 S.Ct. 442, 444, 86 L.Ed. 658 (1942). The Court said, “Payments made directly to shareholders by the lessee or transferee of corporate property are properly recognized as income to the corporation by reason of the relationship of a corporation to its shareholders.” Id. at 48, 62 S.Ct. at 444. Unlike the Earl-Horst- Joliet line of cases in Blair v. Commissioner, 300 U.S. 5, 57 S.Ct. 330, 81 L.Ed. 465 (1937), the Supreme Court held that the taxpayer had not anticipatorily assigned income. In Blair, the taxpayer father had assigned his beneficial interest in a trust to his children. In holding that the father was no longer taxable on the trust income assigned to his children, the Court specifically noted that “[tjhere is here no question ... of the taxpayer’s retention of control [in producing the income in question].” Id. at 12, 57 S.Ct. at 333. The importance of control over the income flow arose again in Commissioner v. Sunnen, 333 U.S. 591, 68 S.Ct. 715, 92 L.Ed. 898 (1948). In Sunnen, the taxpayer assigned to his wife his interest in licensing contracts between himself and a corporation in which he was the controlling shareholder. The Court noted that the “crucial question [is] whether the assignor retains sufficient power and control over the assigned property or over receipt of the income to make it reasonable to treat him as the recipient of the income for tax purposes.” Id. at 604, 68 S.Ct. at 722. The Court held that the income from the contracts was taxable to the husband. It stressed that the husband “retained ... power to control the payment of royalties to his wife” through his ability to end his agreements with the corporation, limit production of the patented device, or license other firms to exploit his patents. Id. at 608-09, 68 S.Ct. at 724-25. B. Applying Sunnen to the instant case, Thibodaux obviously retained significant control over the income flow. It owned the property on which the mineral leases would be entered. It had the exclusive right to “negotiate, make and enter into” these mineral leases “without reference to or consultation with the grantees.” Thus, Thibodaux retained absolute control over the production of income from bonuses and delay rentals. It alone could enter into leases or decide the amounts of bonuses and delay rentals it would accept. Moreover, it could deprive the shareholders of any income whatsoever by either not entering into any leases or entering into leases which did not provide for bonuses or delay rentals. Thibodaux argues that its ability to regulate payments to its shareholders by regulating the leases it grants does not necessarily mean it should be taxed on that income. To support its position, Thibodaux cites our recent decision in Caruth Corp. v. United States, 865 F.2d 644 (5th Cir.1989). This reliance is misplaced. In Caruth, the taxpayer donated shares of callable nonvoting preferred stock in a closely held corporation. Because the taxpayer controlled the voting common stock of the corporation, he also controlled whether the corporation redeemed the stock or paid dividends on it. We held that the taxpayer had parted with an income-producing asset and thus was not taxable on the income from the donated stock. Caruth is distinguishable from the instant case because in Ca-ruth the taxpayer transferred both the right to the income and the underlying asset (the stock) while Thibodaux has transferred only the right to income, but not the underlying asset (the property or the leases). Thibodaux argues, however, that it did transfer income-producing property under Louisiana law. Thibodaux contends that the right to receive bonuses and delay rentals is property under state law and that by transferring that property it can no longer be taxed on it. That state law characterizes a right to receive income as a property right, however, is not controlling on the question of which party should pay taxes on the income. As the Supreme Court has explained, the federal tax laws are to be interpreted so as to give a uniform application to a nation wide scheme of taxation. State law may control only when the operation of the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law.... The state law creates legal interests but the federal statute determines when and how they shall be taxed. Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199 (1932) (citations omitted), quoted with approval in Brown v. United States, 890 F.2d 1329, 1337 & n. 9 (5th Cir.1989); see also Galt v. Commissioner, 19 T.C. 892, 903 (1953), modified, 216 F.2d 41 (7th Cir.1954), cert. denied, 348 U.S. 951, 75 S.Ct. 438, 99 L.Ed. 743 (1955) (holding irrevocable assignment of interest in rent is an anticipatory assignment of income even though state law characterizes such interest as a “chattel real”). Thus although the assignment of the right to receive bonuses and delay rentals may be the transfer of a property right under Louisiana law, that does not mean it may not also be an anticipatory assignment of future income under federal income tax law. A recognized property right that is nothing more than the right to receive income may well be taxable to the assignor of such an interest as an assignment of income. For example, in Horst cited above, the transferee son possessed property rights in the interest coupons. Nevertheless, the income was taxable to his father because assignment of the right to receive income was not accompanied by the asset that produced the income. C. Thibodaux is the owner of the underlying property and controls the mineral leases. By assigning the right to future rentals and bonuses from mineral leases on that property over which it exercises significant control, it anticipatorily assigned its income. The district court correctly concluded that Thibodaux must pay tax on that income. Accordingly, the judgment of the district court is affirmed. AFFIRMED. . The amendment to the Royalty Deed reads in pertinent part: WHEREAS, on the 13th day of June, 1981, at a meeting of the Board of Directors of C.M. THIBODAUX COMPANY, LTD., said Board granted to the stockholders of record on June 1, 1981 the right to receive 100% of the whole of any and all bonus and delay rentals, provided for in any oil, gas and mineral lease upon the lands described in the aforementioned mineral royalty dividend. Any such oil, gas and mineral lease on said property shall provide for the payment to the grantees directly of their proportionate part of said 100% of all bonus, delay rentals and other considerations received on account of said lease. HOWEVER, grantor herein, namely, C.M. THIBODAUX COMPANY, LTD., reserves the executive rights, that is, the right to negotiate, make and enter into any future oil, gas and mineral lease or leases affecting the whole of said lands above mentioned, without reference to or consultation with grantees. . A "bonus" is “money or other property given for the execution of a mineral lease." La.Rev. Stat.Ann. § 31:213(1) (West 1989). A "delay rental" is "an amount paid for the privilege of deferring development of the property.” Treas. Reg. § 1.612 — 3(c)(1) (1989). Moreover, “a delay rental is in the nature of rent.” Id. § 1.612-3(c)(2). . The IRS does not seek to tax Thibodaux on the royalty payments the shareholders received. . The Horst Court later distinguished assigning a beneficial interest in a trust such as was at issue in Blair from assigning ordinary income or compensation, saying: Unlike income thus derived from an obligation to pay interest or compensation, the income of the trust was regarded as no more the income of the donor than would be the rent from a lease or a crop raised on a farm after the leasehold or the farm had been given away. 311 U.S. at 119, 61 S.Ct. at 148. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_othappth	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". COASTAL OIL STORAGE COMPANY, Petitioner and Cross-Respondent, v. COMMISSIONER OF INTERNAL REVENUE, Respondent and Cross-Petitioner. No. 7351. United States Court of Appeals Fourth Circuit. Argued Jan. 23, 1957. Decided March 11, 1957. Jack White, Charleston, S. C., for petitioner and cross-respondent. Earl E. Pollock, Asst, to Solicitor General (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson and Joseph F. Goetten, Attys., Dept, of Justice, Washington, D. C., on brief), for respondent and cross-petitioner. Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and GILLIAM, District Judge. PARKER, Chief Judge. These are cross appeals from the decision of the Tax Court of the United States reported in 25 T.C. 1304. The questions involved relate to the right of a corporate taxpayer to the $25,000 corporate surtax exemption and minimum excess profits credit, granted respectively by section 15(b) and section 431 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 15(b), 26 U.S.C.A. Excess Profits Taxes, § 431. The corporation was organized February 1, 1951. The surtax exemption and minimum excess profits credit were claimed for the months of February to June 1951. They were denied by the Tax Court for the months of April, May and June 1951 under the restrictions imposed by section 15(c) of the Tax Code but allowed for the months of February and March for the reason that the restrictions imposed by that section were not applicable in the latter months. The taxpayer appeals from the denial for the months of April, May and June, the Commissioner from the allowanee for February and March, the Commissioner contending that they should be denied for those months under the provisions of section 129(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 129 (a). Taxpayer’s Appeal Coastal Terminals, Inc. was organized in 1944 for the purpose of supplying and storing petroleum products. It constructed a terminal at North Charleston, S. C. and leased some of the storage facilities there to the office of the Quartermaster General under renegotiable contracts. On February 1, 1951 Coastal Terminals, Inc., caused the taxpayer, the Coastal Oil Storage Company, to be organized and transferred to it seven oil storage tanks, with a capacity of 150,000 barrels, for $100,000 of the capital stock of taxpayer, which was all of the capital stock that taxpayer issued, and a note for ?38>706<79> which taxpayer paid off at the rate of $5,062.50 per month until it was extinguished. The reason given in the testimony before the Tax Court for the creation of taxpayer was to separate storage operations under storage contracts with the government from operations under contracts with others; but it was admitted that tax aspects of the transaction were taken into consideration and no satisfactory reason was given why the same advantages could not have been obtained by separate bookkeeping that were obtained by separate incorporation, which necessarily resolved itself into little more than separate bookkeeping. As a result of the incorporation of taxpayer, the operations at North Charleston received two $25,000 surtax exemptions and minimum excess profits credits instead of one; and the Tax Court found that taxpayer had failed to establish by a clear preponderanee of the evidence that the securing of the extra exemption or credit, or both, was not a major purpose of the transfer of the property to the taxpayer. It, therefore, denied the exemption for the months of April, May and June 1951, under section 15(c) of the Tax Code, the pertinent portion of which is as follows: “If any corporation transfers, on or after January 1, 1951, all or part of its property (other than money) to another corporation which was created for the purpose of acquiring such property or which was not actively engaged in business at the time of such acquisition, and if after such transfer the transferor corporation or its stockholders, or both, are in control of such transferee corporation during any part of the taxable year of such transferee corporation, then such transferee corporation shall not for such taxable year (except as may be otherwise determined under section 129(b)) be allowed either the $25,000 exemption from surtax provided in subsection (b) or the $25,000 minimum excess profits credit provided in the last sentence of section 431, unless such transferee corporation shall establish by the clear preponderance of the evidence that the securing of such exemption or credit was not a major purpose of such transfer.” We agree with the Tax Court that the taxpayer failed to sustain the burden of proof imposed by the statute to “establish by the clear preponderance of the evidence that the securing of such exemption or credit was not a major purpose of such transfer”. Since the keeping of separate records as to government business would have accomplished the separation of government business from other business just as well as the incorporation of a subsidiary corporation, it is difficult to see how the incorporation and transfer could have had any real purpose other than tax avoidance. At all events, we would not be justified in setting aside the finding of the Tax Court as clearly erroneous. The Commissioner’s Appeal While admitting that the section of the Revenue Code above quoted has no application to income for the months of February and March 1951, the Commissioner contends that the taxpayer should be denied the surtax exemption and minimum excess profits credit for those months under the provisions of section 129(a) of the Internal Revenue Code of 1939, as amended by the Revenue Act'of 1943, c. 63, 58 Stat. 21, entitled “Acquisitions made to evade as void income or excess profits tax,” the pertinent portion of which is as follows: “(a) Disallowance of Deduction, Credit, or Allowance. — If (1) any person or persons acquire, on or after October 8, 1940, directly or indirectly, control of a corporation, or (2) any corporation acquires, on or after October 8, 1940, directly or indirectly, property of another corporation, not controlled, directly or indirectly, immediately prior to such acquisition, by such acquiring corporation or its stockholders, the basis of which property, in the hands of the acquiring corporation, is determined by reference to the basis in the hands of the transferor corporation, and the principal purpose for which such acquisition was made is evasion or avoidance of Federal income or excess profits tax by securing the benefit of a deduction, credit, or other allowance which such person or corporation would not otherwise enjoy, then such deduction, credit, or other allowance shall not be allowed. For the purposes of clauses (1) and (2), control means the ownership of stock possessing at least 50 per centum of the total combined voting power of all classes of stock entitled to vote or at least 50 per centum of the total value of shares of all classes of stock of the corporation.” The Tax Court considered this contention of the Commissioner but held the section inapplicable, without passing on the question as to whether or not tax evasion or avoidance was the principal purpose of the transfer in question. In this we think there was error. It is clear that the parent corporation acquired complete control of taxpayer through stock ownership and the parent corporation was certainly a person within the meaning of subsection (1) of the statute. As a result of the transfer of its property in exchange for the stock, it was able to obtain through this splitting up of its corporate business the benefit of an exemption and credit which it would not otherwise have enjoyed. While the exemption is claimed by taxpayer, the sole benefit thereof would accrue to the parent corporation, the sole owner of its stock. Cf. Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406. We see no reason, therefore, why subsection (1) of the section is not applicable. Subsection (2) is applicable also, since taxpayer, as a result of the transfer from the parent corporation, received property having a basis for tax purposes which would be determined by reference to its basis in the hands of the parent corporation, and the transfer re-suited in the securing of a surtax exemption and minimum profits credit, to which neither the taxpayer nor the parent corporation would have been entitled otherwise; for the taxpayer could not have enjoyed the benefit of the surtax exemption and excess profits tax credit but for the acquisition of the property producing the income from or against which the exemption and credit are claimed. That the section was intended to reach just such schemes for tax evasion or avoidance by the splitting up of a business enterprise clearly appears from the H.Rep. No. 871, 78th Cong. 1st Sess., p. 49, where it is said: “This section adds a new section 129 to Chapter 1 of the Code providing that in the case of acquisitions on or after October 8, 1940, of an interest in or control of corporations or property which the Commissioner finds to be principally motivated by or availed of for the avoidance of income or excess profits tax by securing the benefit of a deduction, credit, or other allowance, then the tax benefits are to be disallowed or allowed only in part in a manner consistent with the prevention of tax avoidance. This section is designed to put an end promptly to any market for, or dealings in, interests in corporations or property which have as their objective the reduction through artifice of the income or excess profits tax liability, “The crux of the devices which have come to the attention of your committee has been some form of acquisition on or after the effective date of the Second Revenue Act of 1940, but the devices take many forms. Thus, the acquisition may be an acquisition of the shares of a corporation, or it may be an acquisition which follows by operation of law in the case of a corporation re-suiting from a statutory merger or consolidation. The person, or persons, making the acquisition likewise vary, as do the forms or methods 0f utilization under which tax avoidance is sought. Likewise, the tax benefits sought may be one or more of several deductions or credits> including the utilization of exceSs profits credits, carry-overs, and carry-backs of losses or unused excess profits credits, and anticipated expense of other deductions. In the light of these considerations, the section has not confined itself to a description of any particular methods for carrying out such tax avoidanee schemes but has included within its scope these devices in whatever form they may appear. For similar reasons, the scope of the terms used in the section is to be found in the objective of the section, namely, to prevent the tax liability from being reduced through the distortion or perversion effected through tax avoidance devices. * * */» (italics supplied.) This accords with the interpretation placed upon the section by a later Con-gross, where in the Senate report on proposed amendments to the corporate .surtax exemption provisions, it was said (S.Rep. No. 2375, 81st Cong.2d Sess. p. 70, 2 Cum.Bull. 483, 533) : “It is not intended, however, that the exemption of the first $25,000 of a corporation's surtax net income from the surtax shall be abused by the splitting up, directly or indirectly, of a business enterprise into two or more corporations or the forming of two or more corporations to carry on an integrated business enterprise. It is believed that sections 45 and 129 will prevent this form of tax avoidance.” The Tax Court refers to its decision in Commodores Point Terminal Corp. v. Com’r, 11 T.C. 411; but that was an entirely different case from this and is no precedent for its decision here. There a corporation had acquired a controlling interest in another corporation and the question was whether it was entitled to a dividends received credit on the stock purchased in the transaction. The Tax Court in allowing the credit pointed out that the dividends, and consequent credit, were not dependent on the taxpayer’s having acquired control of the other corporation. In this case, as pointed out above, the taxpayer could not have enjoyed the exemption and credit claimed but for the acquisition of the property producing the income, which was transferred to it by the parent corporation. There, not only was there a holding that there was no purpose of tax avoidance, but the transaction was not one which involved tax avoidance. Here there can be no question but that tax avoidance necessarily resulted from the corporate splitting which was involved. Taxpayer says that the Commissioner may not rely upon section 129(a) because this section was not relied on in his statutory notice to the taxpayer upon which the jurisdiction of the Tax Court was invoked. The Commissioner did, however, deny the surtax exemption and excess profits credit to taxpayer for the entire five months period; and in the Tax Court he relied upon section 129 (a) as well as upon 15(c) in support of his position, and the applicability of 129(a) was expressly passed upon and denied by the Tax Court. When the action of the Commissioner was legally correct on the facts, it should not be held erroneous merely because he referred to the wrong section of the statute as supporting it; and particularly is this true when it appears that before the Tax Court he relied upon the section which was applicable and supported his action. The decision of the Tax Court will accordingly be affirmed as to the matters embraced in Taxpayer’s appeal and reversed as to the matters embraced in the Commissioner’s appeal; and the case will be remanded to the Tax Court for further proceedings not inconsistent herewith. Affirmed on Taxpayer’s Appeal. Reversed and Remanded for further proceedings on Commissioner’s Appeal. . This section was added by section 121 (f) of the Revenue Act of 1951 and is applicable only after March 31, 1951, 65 Stat. 468 et seq. . It is not disputed that the basis of the seven storage tanks in the hands of the taxpayer should be determined by reference to the basis in toe hands of the parent corporation under sections 112(g) (1) (D) and 113(a) (7) (B) of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 112(g) (1) (D), 113(a) (7) (B). Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_applfrom	J	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). CITY OF WINNER, S. D., v. KELLEY. No. 9718. Circuit Court of Appeals, Eighth Circuit. June 29, 1933. Byron S. Payne, of Pierre, S. D. (Don G. Grieves, of Winner, S. D., and John Sutherland and Otto B. Linstad, both of Pierre, S. D., on the brief), for appellant. Howard G. Fuller, of Fargo, N. D. (Lawrence, Murphy, Fuller & Powers, of Fargo, N. D., on the brief), for appellee. Before STONE and WOODROUGH, Circuit Judges, and HUNGER, District Judge. WOODROUGH, Circuit Judge. This is an action for damages against the city of Winner, S. D., brought by the owner of three $1,000 unpaid 6 per cent, paving bonds, issued by the city in 1922. A jury trial was waived, and the ease was heard upon a stipulation of facts. The court made findings of fact in accordance with the stipulation, and rendered judgment for damages for the bondholder against the city, in an amount equal to the face of the bonds with interest. The city appeals. The only error assigned that need be considered is that the findings do not support the judgment. Tatum v. Davis (C. C. A.) 283 F. 948. From the pleadings and the findings it appears that the total issue for the particular paving improvement was $74,018.51, some of the bonds falling due in 1924, some each year thereafter until 1931, at which time eighteen bonds in the principal sum of $18,-018.51 were made payable. The plaintiff’s bonds are among the eighteen due in 1931. Under the laws of South Dakota, as 'construed by its Supreme Court before the bonds were marketed, such bonds are not a general obligation of the city, but are payable out of the paving assessment. Gross v. Bowdle, 44 S. D. 132, 182 N. W. 629. The paving tax assessment to pay the bonds was in all respects properly made by the city before the bonds were issued, and all proceeds therefrom have been properly applied by the city on the bonds. But, on account of the failure of the property owners to pay the assessments, there is not enough money in the fund to pay the last eighteen bonds of the series, including those belonging to the plaintiff. It is claimed in this suit that the certificate and recitals appearing on the face of the bonds contain material representations, duly relied upon, which were false, that insufficient assessment was made by the city to meet the bonds, and also that the city breached its obligations concerning the collection of the paving assessment out of which the bonds were payable. The recital in the bonds claimed to contain false representations is as follows: “It is hereby certified and recited that all acts, conditions and things required by the laws and constitution of the State of South Dakota to be performed, to happen and to exist precedent to and in the levy of said special assessments and the issuance of this bond, have been properly done, have happened, and existed in regular and due form, manner and time, as required by law; and that said special assessments against the property benefited to pay the cost of such local improvement have been legally made, * * * and the amount of said assessment is sufficient to pay the principal and interest on this bond when and as the same become due.” The first contention for the bondholder is that the amount of the assessment was not, as recited, sufficient to pay the principal and interest on the bonds when and as they became due, and therefore the city has become liable. To sustain this contention, the bondholder relies upon a computation showing that the bonds issued and the interest that would have to be paid on them would amount to $100,779.99; and another computation which shows that the proceeds of the paving assessment, if each installment should be paid at its due date, before delinquency, would amount to only $97,248, and he claims this difference of $3,531.99 proves the assessment to have been insufficient, and the recital that it was sufficient to be false. The computations are incomplete. The bonds were sold at par, and interest accrued to the date of selling, but the bond money was not used until the contractor finished the paving work, and the interest up to that time was put in the special fund, and applied on the bonds; the amount of interest so saved by the city during the progress of the paving work was found to be $2,257.80; so that, if the anticipated proceeds of the assessment be figured out according to the bondholder’s computation, and this item taken into consideration, the possible deficiency was only $1,-281.12, instead of $3,531.09. Such a difference would appear too slight to present actionable fraud. But, regardless of whether the certificate and recitals were binding on the city or not, there is no merit in the contention. In the first place, the assessment was in exactly the same amount as the bonds issued, and in that regard the city authorities acted strictly in accordance with the requirement of the controlling statute, which says: “ * * * The governing body of the municipal corporation, in place of issuing assessment certificates * * * may by ordinance provide for the issuance of its negotiable bonds without a vote of the electors in an amount equal to the entire assessment and sell the same at not less than par with accrued interest, to pay the cost of the improvement.” So. Dak. Rev. Code 1919, § 6409, as amended by chapter 319, Session Laws 1921. The bond owner was bound to know the law governing the issuance of the bonds. U. S. ex rel. Huidekoper v. Macon County Court, 99 U. S. 582, 25 L. Ed. 331. Furthermore, the contention of the bondholder ignores the terms of the assessment and the nature of the certificate. The bonds called for a mathematically demonstrable amount of principal and interest. But the exact sum which would be produced by the paving tax assessment was beyond human foretelling. There were ten installments of the paving assessment, spread over ten years. These ten installments called for 7 per cent, interest and 1 per cent, a month by way of penalty upon any installment which was not paid within sixty days after a certain date in each year. The taxpayer could pay all or any installments before due, saving himself interest, but, if he did, and so brought into the fund more than enough money to meet the maturing bonds, the city was required to put such accumulations out at interest. Section 6999, Rev. Code S. D. 1919. The recital in the bonds that the assessment was sufficient could only mean that, in the honest judgment of the authorities, if the installments were collected with reasonable success, with such penalties as were to be expected, and such interest as the city could get on payments made ahead of time, there would be enough to meet the bonds and the interest thereon. There is no testimony that the expectation reflected in the recital was not honestly held by the city authorities. On the contrary, the proof and finding is that the installments of the assessment now outstanding and delinquent, together with interest and penalties accrued thereon, exceed the amount of outstanding bonds and interest thereon. There was no damage to the bondholder by reason of any claimed insufficiency in the amount of the assessment. If the assessment had been substantially greater, it would have been contrary to the statute cited, and any taxpayer eould have enjoined it. The trial court erred in the conclusion that there was insufficient assessment or false representations and damage to the bondholder on account thereof. Another question elaborately argued before us arises upon the claim of the bondholder that the city wrongfully failed to enforce collection of the paving tax assessment, and on that ground became liable to him for the amount of his bonds with interest. The court found that the city auditor m each year from 1922 to 1931, inclusive, had certified to the county auditor the installments of the assessments which were delinquent, for the purpose of the delinquent special assessment tax sale. The court also found that the county treasurer in 1922, 1923, 1924, 1927, and 1928 had failed to advertise and to offer for sale the lots covered by the special assessment then due, and that in the years 1925, 1926, and 1929, the county treasurer had advertised and offered the lots for sale, but that none of the lots was sold or bid in at the sale. What the value of the lots was as compared to the assessments levied is not disclosed. See Peake v. New Orleans, 139 U. S. 342, 11 S. Ct. 541, 35 L. Ed. 131. The appellant iontends that these facts do not support the judgment rendered, while the theory of the appellee is that the city was responsible to him in damages because, in violation of his duty, the county treasurer failed to advertise and to offer for sale annually these lots on which an installment of the special assessment was delinquent, or, if he did so advertise and offer for sale in any year, the city was liable to the appellee in damages, because the county treasurer did not bid in the property for the benefit of the city, in the absence of other bidders. The ap-pellee also contends that the county treasurer was the agent of the appellant city, and his failures in these matters were failures of the city. The statutory scheme for the levy and collection of these assessments contemplates that the city auditor shall annually certify to the county auditor all delinquent assessments, and that the county auditor shall then certify these assessments to the county treasurer, who is required to advertise and offer for sale the parcels of land against which the assessments are imposed. Sections 6400, 6401, 6402, 6785, 6786, 6797 of South Dakota, Rev. Code 1919. By section 6401 of the Code, it is provided that no assessment shall be paid to or collected by the city treasurer after the assessment has been certified to the county auditor, and by the next section it is provided that it is the duty of the county auditor and county treasurer to proceed with the sales for such taxes, as in the ease of other tax sales. Sections 6794 and 6803 of the Code contain these provisions: “§ 6794. County Treasurer May Purchase. * * ■ The county treasurer is authorized at all tax sales made under the laws of this state, in case there are no other bidders offering the amount due, to bid off all or any real property offered at such sale for tbe amount of taxes, penalty, interest and costs due and unpaid thereon, in the name of the county in which the sale takes place, such county acquiring all the rights, both legal and equitable, that any purchaser could acquire by reason of such purchase: Provided, that whenever any county shall, acquire an interest in real property, or any rights with respect thereto, by reason of the same having been bid off in the name of the county as herein provided, such real property shall not be again advertised and sold for delinquent taxes so long as the county retains its interest in and rights to such real property; and provided, further, that all taxes subsequently accruing against such real property, or that were unpaid at the time of such sale and a lien thereon but not included in such bid, shall be considered as 'subsequent tax/ and before the county can make an assignment of such interest in and rights to such real property, or before an assignment of the certificate of such sale is made, all such taxes must be paid in full, including the amount for which such real property was so bid off, unless a compromise thereof is made as permitted by law, in which case the amount at which such compromise is made must be paid. “§ 6803. Transfer by County of Property Acquired by Tax Peed. All real property bid in by the treasurer in the name of the county, and not redeemed or assigned within two years from the date of sale, shall, upon the treasurer giving the notice required by law, become the property of the county, and the treasurer shall issue a tax deed therefor to the county in the same manner as to individual purchasers. Property so acquired may, under the direction of the board of county commissioners, be sold at public or private sale. * * The proceeds of such sale shall be placed to the credit pro rata of the various funds which are the beneficiaries of the tax for 'which the property was sold: Provided, however, that in private sales of real property having an assessed value of twenty-five dollars or less, the board of county commissioners may accept any amount less than the amount due for the taxes, penalty and costs incurred in obtaining a tax deed by the county.” The bondholder contends that, as the county treasurer is required to proceed with the sales for the assessment liens “as in the case of other tax sales,” he should have bought in the property, failing other bidders, for the city, pursuant to the provisions of sections 6794 and 6803 just quoted. While these statutes confer power on the county treasurer to bid in property in the name of the county, at a sale for taxes, no statute of South Dakota has been cited which either required or authorized the city to bid at such tax sales, or making any provision as to what should be done with the purchased property, if the city should acquire it. It is the general rule that a municipal corporation has no power to purchase real property for taxes unless it is authorized to do so by statute. 3 Cooley on Taxation (4th Ed.) § 1448 ; 44 Corp. jur. 1358; 61 Corp. Jur. 1229, and eases cited. However, the Supreme Court of South Dakota, commenting on section 6794 in Brink v. Dann, 33 S. D. 81, 144 N. W. 734, 738, said: “The statute leaves it discretionary with the treasurer whether or not he shall bid the property in for the county. Section 2203, Pol. Code.” So that, even as to the county, the bidding in of the property by the county treasurer is not a duty even where the sale is for county and state taxes — it is a matter of discretion lodged in the county treasurer. In Grand Lodge of A. O. U. W. v. City of Bottineau, 58 N. D. 740, 227 N. W. 363, 365, the court considered a statute which required that property offered for sale for a delinquent special assessment should be purchased in the name of the city, in the absence of other bidders, and it was said: “It will be noted that section 3735, supra, requires that when a lot is sold for a delinquent special assessment, and there are no bidders, it shall be struck off to the city. Independent of such a statute, a municipality is not in duty bound to bid in the property sold for nonpayment of special assessment taxes. City of New Albany v. Sweeney, 13 Ind. 245; Creighton v. City of Toledo, 18 Ohio St. 447; Richardson v. City of Brooklyn, 34 Barb. (N. Y.) 569.” In the ease of Hauge v. City of Des Moines (Iowa) 216 N. W. 689, an action to recover from the city of Des Moines because of alleged negligence of the city in failing to provide for proper assessments and for their collection to pay municipal bonds which had been issued, the court held that the city had the right to bid at the tax sale, but this opinion was later withdrawn and another opinion substituted, Hauge v. City of Des Moines, 207 Iowa, 1209, 224 N. W. 520, 523, in which it was said that the county treasurer in collecting such taxes acted as an agent of the city, but stated: “We do not hold that it was the duty of the city to buy in this delinquent properly at tax sale.” It seems clear that there was no duty imposed upon the appellant or upon the county treasurer to purchase, in the name of the appellant, or for its benefit, any of the lands offered for sale for taxes, and that there was no duty imposed upon the city to require the county treasurer to advertise and offer this property for sale each year, and that the judgment of the court is not supported by the findings of fact. The judgment will therefore be reversed. 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_petitioner	025	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. WESTERN MARYLAND RAILWAY CO. v. ROGAN et al., CONSTITUTING THE STATE TAX COMMISSION OF MARYLAND. No. 205. Argued November 28-29, 1950. Decided February 26, 1951. William C. Purnell argued the cause and filed a brief for appellant. Hall Hammond, Attorney General of Maryland, and Harrison L. Winter argued the cause and filed a brief for appellees. Mr. Justice Douglas delivered the opinion of the Court. This is a companion case to Canton R. Co. v. Rogan, ante, p. 511. This appellant likewise challenges the validity under Art. I, § 10, cl. 2 of the Constitution of the application of the Maryland franchise tax to the extent that the gross receipts by which the tax is measured include revenues derived from the transportation of goods moving in foreign trade. Western Maryland Railway Company is an interstate common carrier by rail with lines in Maryland, West Virginia and Pennsylvania. It operates several piers in the port of Baltimore for handling cargoes of coal, ores and general merchandise, as well as a grain elevator. A substantial proportion of Western Maryland’s freight traffic from and to these facilities consists of the transportation of goods imported into or to be exported from the United States. The present case concerns the taxable years 1945 and 1946. For 1945 Western Maryland reported gross receipts of $33,156,236.74, of which the State Tax Commission, pursuant to the statutory formula, apportioned $13,219,822.62 to Maryland. For 1946 the amounts were $30,844,132.74 and $12,322,817.41 respectively. In subsequent amended returns Western Maryland excluded from taxable receipts the sums of $2,505,322.58 for 1945 and $5,405,559.44 for 1946. It claimed that these amounts represented revenues from the transportation over its lines of exports and imports and were therefore beyond the state’s power to tax. After a hearing, the Commission rejected this contention. Its assessment was sustained, and the case is here on appeal. What we have said in Canton R. Co. v. Rogan, supra, is dispositive of this case. The present facts illustrate how wide a zone of tax immunity would be created if the contrary holding were made in the Canton R. Co. case. There we were dealing with the handling of exports and imports within a port. Here we have transportation of exports and imports to and from the port. If Maryland were required to grant tax immunity to the services involved in getting the exports to the port and the imports to their destination, so would any other State. The ultimate impact of such a holding is difficult to measure, since manifold services are involved in the movement of exports and imports within the country. Problems of this nature, like many problems in the law, involve the drawing of lines. So far as taxes on activities connected with bringing exports to or imports from the ship are concerned, we think the line must be drawn at the water’s edge. Whether loading and unloading would be exempt is a question we reserve. Affirmed. The Chief Justice took no part in the consideration or decision of this case. [For opinion of Mr. Justice Jackson, joined by Mr. Justice Frankfurter, reserving judgment in this case and in No. 96, Canton R. Co. v. Rogan, see ante, p. 511.] Md. Ann. Code (1943 Supp.), Art. 81, §§ 94% and 95. 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_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, Appellee, v. Thomas RAYMOND, Appellant. Nos. 85-1916, 85-1917. United States Court of Appeals, Eighth Circuit. Submitted Jan. 17, 1986. Decided June 16, 1986. Cornelius T. Lane, Jr., Gunn & Lane, St. Louis, Mo., for appellant Thomas Raymond. Charles Shaw, Asst. U.S. Atty., St. Louis, Mo., for appellee United States. Before HEANEY, ARNOLD and WOLL-MAN, Circuit Judges. WOLLMAN, Circuit Judge. A jury convicted Thomas Raymond on one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and of wilfully failing to appear for trial— “bail jumping,” — in violation of 18 U.S.C. § 3146. On appeal, Raymond contends that the district court erred in admitting certain evidence; denying his request for a continuance; and joining the conspiracy and bail jumping offenses for trial. He also contends that the evidence was insufficient to prove his involvement in a conspiracy. We affirm. I. The events leading to the conviction of Thomas Raymond began in April of 1981 with the arrest of one Tina Lampston by the St. Louis Police Department. Undercover Detective Gregory Skinner arrested Lampston after purchasing a quarter pound of marijuana from her. Lampston informed Skinner that her source for the marijuana, whom she identified as Valente Hernandez, was located in Houston, Texas. She indicated that he was involved in the sale and distribution of large amounts of cocaine. Lampston agreed to cooperate in an investigation of Hernandez’ activities. The federal Drug Enforcement Administration (DEA) entered the investigation at the request of the St. Louis Police Department. On April 23, 1981, Lampston contacted Hernandez by telephone at his residence in Houston. She introduced Skinner as a longtime friend who was interested in purchasing cocaine. The conversation that followed between Hernandez and Skinner was recorded. Skinner told Hernandez that he was interested in obtaining a new source of cocaine to supply him with at least eight ounces a week. Hernandez replied that he had ample supplies of good quality cocaine available to him and that he was interested in doing business. The two discussed a possible cocaine sale and agreed to meet at a later date. Over the next three days, Hernandez and Lampston engaged in a series of recorded telephone conversations in an effort to finalize the details of this sale. On April 27, 1981, Larry Hernandez, Va-lente’s brother, flew from Texas to St. Louis, where he was met at the airport by Lampston. He gave Lampston one ounce of cocaine. The two then proceeded to a South County hotel, where they met with Skinner. After inspecting the cocaine, Skinner gave Larry $2,500 cash and asked him to arrange with Valente a second sale involving one pound of cocaine. The details of this sale were also confirmed through a series of recorded telephone conversations between Lampston and Valente Hernandez. The next day, April 28, 1981, Clarice Garcia, Valente’s common law wife, flew from Houston to St. Louis, where she proceeded to Lampston’s residence. The two had been friends for approximately 18 years. Garcia did not know that Lampston was cooperating with the St. Louis police and the DEA. Using Lampston’s telephone, Garcia placed a call to Valente at Raymond’s Houston home. Raymond answered the phone, and Garcia asked to speak with Va-lente. She asked Valente about the pound of cocaine and his plans for coming to St. Louis. Valente indicated that he and Raymond were “making the packages up then” and that he would be in St. Louis the next day. This conversation was also recorded. On April 30, 1981, Lampston informed Skinner and DEA Special Agent James McDowell that Valente had arrived in St. Louis. Skinner, Garcia and Lampston met at Lampston’s residence. Skinner displayed $40,000 cash to Lampston and Garcia. In accordance with Valente's instructions, Lampston took the cash and proceeded to a location somewhere in St. Louis. From there she went to a hotel where she met with Valente, who gave her a pound of cocaine. After Lampston returned home, Skinner examined and tested the cocaine; he then placed Garcia under arrest. Following her arrest, Garcia agreed to cooperate with the investigation, which now centered on Raymond, who was believed to be Valente’s supplier of cocaine. Garcia called Raymond that same day, April 30, at his home in Houston and recorded the conversation. This conversation formed the basis of the government’s case against Raymond. Raymond was arrested in Houston on May 8, 1981, and thereafter indicted on one count of conspiracy to distribute cocaine. Also charged in the indictment were Va-lente Hernandez and Larry Hernandez, who both entered guilty pleas. Raymond failed to appear for trial in St. Louis in July of 1981 as required by his appearance bond and was indicted on a count of wilfully failing to appear for trial. II. Raymond first argues that the district court erroneously admitted evidence of an out-of-court statement that Valente Hernandez made to Clarice Garcia during the April 28, 1981, telephone conversation. Specifically, Raymond sought to exclude Hernandez’ statement that he and Raymond were “making the packages up.” The district court admitted this evidence on the condition that the government establish the existence of a conspiracy involving Raymond by a preponderance of evidence independent of the challenged statement. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978); see Fed.R.Evid. 801(d)(2)(E). At the close of the government’s case, the district court determined that such independent evidence existed. A coconspirator’s out-of-court statement is admissible against a defendant if the government establishes: “(1) That a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy.” United States v. Bell, 573 F.2d at 1043. Only the second requirement, Raymond’s involvement in the conspiracy, is at issue in this case. The independent evidence that the district court referred to in its ruling is the taped conversation of April 30, 1981, between Garcia and Raymond. When Garcia first called Raymond from Lampston’s phone, this exchange took place: RAYMOND: Yeh, where are you at? GARCIA: I’m at Tina’s. RAYMOND: Ah, you didn’t dial me direct, did you? sjs j}! sjs sfc # GARCIA: No. Ah yes. Why? RAYMOND: Oh no, alright listen. Val [Valente] got a problem. GARCIA: Huh? Yeh but uh you know that. Yeh she’s [sic] definitely got a problem. RAYMOND: Yeh I know, well now listen. Uh, you go outside to a pay phone and call me. * # * * * * RAYMOND: Is that girl, Tina, with you? GARCIA: Huh? Well of course. RAYMOND: You go outside to a pay phone alone and call me back. Moments later Garda called Raymond from a pay telephone: RAYMOND: Are you in a pay station? * * * * * * GARCIA: Yeh I’m in a pay phone RAYMOND: How come I here [sic] kids and shit in the background? GARCIA: Huh? Their [sic] coming out of the store. RAYMOND: Give me the number where you are at. GARCIA: O.K. RAYMOND: And I’ll call you right back. Raymond immediately called Garcia back and began to question her at length about the details surrounding her arrest as well as the arrest of Valente Hernandez. The transcript of their conversation reveals that Raymond implored Garcia to be honest with him warning: “Let me tell you something. If I’m done too, nobody's going to help nobody. You understand what I’m saying?” Raymond told Garcia that he believed Lampston was cooperating with the government and that “what they’re trying to (do) right now is get the next guy up.” He continued: “And they know you are going to contact him and that’s just what you’ve done, by phone and I tell you there’s something screwy about her (Lamp-ston’s) number.” Raymond instructed Garcia to obtain as much information as she could from Lampston, and, still referring to Lampston, Raymond remarked: “I hope you didn’t say you were calling Val’s boss.” The colloquy continued: GARCIA: No, no I didn’t. I didn’t say nothing. I just said I had to go get some cigarettes. RAYMOND: No but I’m talking about when ah when you made a call to me last night or this morning. **** RAYMOND: And you made one again just a little while ago when everything went down. GARCIA: Yeh. RAYMOND: They don’t have to be real geniuses to put that together. **** RAYMOND: So, I don’t get no problem, cause there’s nothing here. GARCIA: Yeh. RAYMOND: But it still puts a little heat on me unnecessarily. We agree with the district court that this evidence circumstantially implicates Raymond in the charged conspiracy. Because circumstantial evidence of a defendant’s participation in a conspiracy is as “intrinsically probative as direct evidence,” United States v. Scholle, 553 F.2d 1109, 1118 (8th Cir.1977), we conclude that the government met its burden of showing by a preponderance of the independent evidence Raymond’s active involvement in a conspiracy to distribute cocaine. Accordingly, Valente Hernandez’ out of court statement was admissible. Raymond argues in the alternative that the taped conversation was inadmissible as an uncorroborated “extrajudicial admission,” citing United States v. Moss, 591 F.2d 428 (8th Cir.1979). This argument fails, however, for footnote nine on page 435 of the Moss opinion, which Raymond refers to, reads in relevant part: “[A] post arrest admission must be corroborated by independent evidence.” (citations omitted) (emphasis added). Here, of course, the taped conversation between Raymond and Garcia took place prior to Raymond’s arrest. This court observed in United States v. Buttorff, 572 F.2d 619, 626 (8th Cir. 1978), that “[e]xtrajudicial admissions and confessions to nonlaw enforcement persons are admissible when they are ‘freely and voluntarily made, without threat or inducement, and without taint of illegality in their procurement * * Accordingly, the taped conversation was admissible, without corroboration, as an admission under Rule 801(d)(2)(A) of the Federal Rules of Evidence. See United States v. Piatt, 679 F.2d 1228, 1232 (8th Cir.1982); United States v. Porter, 544 F.2d 936, 939 (8th Cir.1976). Raymond also challenges the sufficiency of the evidence, arguing that the government failed to establish that he agreed to commit a crime. An agreement to commit an illegal act is one of three elements the government must prove in a conspiracy case. United States v. Mi-chaels, 726 F.2d 1307, 1310-11 (8th Cir. 1984). The agreement can be established by circumstantial evidence and need show “no more than a tacit understanding among the participants.” United States v. American Grain & Related Industries, 763 F.2d 312, 315 (8th Cir.1985). To be sure, “mere knowledge of an illegal act or association with an individual engaged in illegal conduct is not enough.” Id. But the evidence against Raymond, when viewed in a light most favorable to the jury verdict, United States v. Michaels, 726 F.2d at 1311, was sufficient to establish that his involvement in the conspiracy went beyond mere knowledge. The April 30 phone conversation between Raymond and Garcia, together with Hernandez’ statement to Garcia that he and Raymond were preparing the packages, gives rise to a strong inference that Raymond knowingly and actively participated in a conspiracy with Valente Hernandez to distribute cocaine. We have considered the other claims of error raised by Raymond and conclude that they are without merit. The judgment is affirmed. . The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri. . Valente Hernandez and Larry Hernandez were each charged with conspiracy to distribute cocaine and with distribution of cocaine. . The government must also show that the objective of the agreement was to violate the law and that an act in furtherance of the conspiracy was committed by at least one of those in agreement. Michaels, 726 F.2d at 1310-11. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_counsel1	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. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Athalie LAMORE, et al., Plaintiffs, Appellants, v. H. Rollin IVES, Commissioner, Maine Department of Human Services, Defendant, Third-Party Plaintiff, Appellee. H. Rollin IVES, Commissioner, Maine Department of Human Services, Defendant, Third-Party Plaintiff, Cross-Appellant, v. Louis W. SULLIVAN, M.D., Secretary, Department of Health and Human Services, Third-Party Defendant, Cross-Appellee. Nos. 91-1939, 91-1998. United States Court of Appeals, First Circuit. Heard April 7, 1992. Decided Oct. 20, 1992. Martha A. Grant, Legal Services for the Elderly, Inc., Presque Isle, Me., with whom Jeanne Finberg, Nat. Senior Citizens Law Center, Washington, D.C., was on brief for Athalie Lamore, et al. George Eng, Asst. Regional Counsel, Dept, of Health and Human Services, Washington, D.C., for Louis W. Sullivan, M.D., Secretary, Dept, of Health and Human Services. Marina E. Thibeau, Asst. Atty. Gen., Dept, of Human Services, Michael E. Carpenter, Atty. Gen., and Christopher C. Leighton, Deputy Atty. Gen., Augusta, Me., on brief for H. Rollin Ives, Com’r, Maine Dept, of Human Services. Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOYLE, U.S. District Judge. Of the District of Rhode Island, sitting by designation. LEVIN H. CAMPBELL, Senior Circuit Judge. This appeal raises the question whether Veterans Administration Aid and Attendance benefits should be treated as income for purposes of determining the extent of Medicaid allowances an eligible veteran or veteran’s survivor can receive under the Home and Community-Based Medicaid Waiver Program. Plaintiffs-appellants are disabled veterans or dependents of deceased veterans who receive Aid and Attendance benefits from the Veterans Administration pursuant to 38 U.S.C. § 1502(b), and who also receive Medicaid allowances pursuant to the Home and Community-Based Medicaid Waiver Program, 42 U.S.C. 1396n(e) & (d). Plaintiffs sued the Maine Department of Human Services (the “state defendant”) in state court after the State initiated a policy of treating Aid and Attendance benefits as income for purposes of determining the amount plaintiffs must contribute toward their own care under the Medicaid Waiver Program. See HCFA State Medicaid Manual § 3701. According to plaintiffs, this action violated federal law. The state defendant removed the case to the United States District Court for the District of Maine and filed a third party complaint against the Secretary of the United States Department of Health and Human Services (the “federal defendant”). The third party complaint alleged that the federal defendant expressly directed the State to use Aid and Attendance benefits in determining a Medicaid recipient’s cost of care. Based on a stipulated record, the district court entered judgment for the state defendant finding that no federal law had been violated. The court then dismissed the State’s third party complaint. Plaintiffs appeal and the state defendant cross-appeals. We affirm. I. As mentioned, plaintiffs received Aid and Attendance Benefits from the United States Department of Veterans’ Affairs pursuant to 38 U.S.C. § 1502(b). In addition, plaintiffs are recipients of Medicaid under the Home and Community-Based Medicaid Waiver provisions of the Medicaid Program. 42 U.S.C. § 1396 et seq. These provisions authorize the Secretary to grant a waiver to a state under which approved costs of home and community based services are reimbursed for eligible individuals who would otherwise require care in a nursing home facility, but who elect to remain in their homes. 42 U.S.C. § 1396n(d); 42 C.F.R. § 435.217. As a state that has elected to participate in the Medicaid program, Maine has assumed a procedural obligation to include, in its State plan for medical assistance, “reasonable standards ... for determining eligibility for and the extent of medical assistance....” 42 U.S.C. § 1396a(a)(17); see 'also 42 U.S.C. § 1396a(a)(10)(A)(ii)(VI) (describing generally the category of individuals eligible for medical assistance under a State plan providing home and community based services). Under Maine’s state plan, the Department of Human Services (DHS) determines an applicant’s participation in the home and community based services in two phases. First, DHS establishes the applicant’s financial and medical eligibility to participate in the program (the “eligibility” phase). Second, the agency determines the extent of assistance to which an applicant is eligible; specifically, the amount the applicant will have to contribute towards his or her own care (the “post-eligibility” phase). Both the eligibility and the post-eligibility phases require a determination of the applicant’s income and resources. All the parties agree that for purposes of determining eligibility for home and community based services, income does not include Aid and Attendance benefits. Such payments are specifically excluded under the relevant federal regulation: Social Services are not income if they are any of the following: (1) Assistance provided in cash or in kind (but not received in return for a service you perform) under any Federal, State, or local government program whose purpose is to provide social services including vocational rehabilitation (Example: Cash given you by the Veterans Administration to purchase aid and attendance]); .... 20 C.F.R. § 416.1103 (emphasis supplied). The parties disagree, however, as to whether Aid and Attendance benefits should be counted as income for purposes of the post-eligibility determination. The state and federal defendants contend that the Secretary has the authority to allow Aid and Attendance benefits to be considered in assessing income for purposes of the post-eligibility determination even though the same benefits are not counted as income when determining eligibility for the home and community-based Medicaid waiver program. Plaintiffs, on the other hand, contend that including Aid and Attendance benefits in income in the post-eligibility stage violates explicit statutory mandates and is contrary to congressional intent. II. Plaintiffs rely on 42 U.S.C. § 1396a(a)(17) in support of their position that Aid and Attendance benefits may not be counted as income in determining the amount an eligible applicant must contribute to his or her own care under the Medicaid waiver program. Section 1396a(a)(17) provides that: A State plan for medical assistance must— (17) ... include reasonable standards (which shall be comparable for all groups ...) for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter, (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and (in the case of any applicant or recipient who would, except for income and resources, be eligible for aid or assistance in the form of money payments under any plan of the State approved under subchapter I, X, XIV, or XVI or part A of subchapter IV, or to have paid with respect to him supplemental security income benefits under subchapter XVI of this chapter) as would not be disregarded (or set aside for future needs) in determining eligibility for such aid assistance, or benefits,.... The plaintiffs would have us parse out the second parenthetical, which they contend is neither “relevant” nor “essential to analyzing the meaning of the statute at all.” Lacking the parenthetical, the statute would provide that state Medicaid plans must “include reasonable standards ... for determining ... the extent of medical assistance, ... which ... provide for taking into account only such income ... as would not be disregarded in determining eligibility.” So simplified, the statute is unambiguous, say plaintiffs, in requiring that the criteria for assessing income must be the same for purposes of determining eligibility as for determining post-eligibility. While the statute is indeed complex — the district court aptly described it as “a virtually impenetrable thicket of legalese and gobbledygook” — we can see little justification for reading the cited parenthetical out of it. See United States v. Ven-Fuel, 758 F.2d 741, 751 (1st Cir.1985) (“[a]ll words and provisions of statutes are intended to have meaning and are to be given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant or superfluous”); see also Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 23 (1st Cir.1989) (“absent ambiguity in the statutory language, our inquiry is complete and ends with the plain language of the statute”); Securities Indus. Ass’n v. Connolly, 883 F.2d 1114, 1118 (1st Cir.1989) (statutory language must be accorded its ordinary meaning), cert. denied, 495 U.S. 956, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990). The statute should be read as a whole, with due consideration to both the content of the parenthetical which plaintiffs urge us to ignore and to its position in the text. Like the district court, we believe the parenthetical modifies the phrase “as would not be disregarded ...” which follows it. See Lamore v. Ives, Civil No. 90-0092-B, slip op. at 3-4, 1991 WL 193601 (D.Me. July 19, 1991); see also Sherman v. Griepentrog, 775 F.Supp. 1383, 1391 (D.Nev.1991) (agreeing with the reasoning expressed in Lamore). The parenthetical makes no sense standing alone nor is it explained or modified by the language which precedes it. Meaning can be found, however, if it is understood as modifying the phrase that follows it. If so, the restriction on the characterization of income inherent in the “as would not be disregarded ...” phrase applies “in the case of” all such individuals as the parenthetical describes. If plaintiffs are among those described in the parenthetical, then section 1396a(a)(17) directs the DHS to exclude Aid and Attendance benefits from income for purposes of the post-eligibility determination if it wishes to be assured that the Secretary will approve its plan, since such benefits would be disregarded in determining an applicant’s eligibility for the medicaid waiver program. See 20 C.F.R. § 416.1103 and supra note 8. If, on the other hand, the parenthetical does not describe the plaintiffs, then the statute does not restrict the Secretary’s discretion to define income differently in the post-eligibility phase than the way it is defined in the eligibility phase. III. The parenthetical at issue in 42 U.S.C. § 1396a(a)(17) expressly applies to, ( ... any applicant or recipient who would, except for income and resources, be eligible for aid or assistance in the form of money payments under any plan of the State approved under subchapter I, X, XIV, or XVI or part A of subchap-ter IV, or to have paid with respect to him supplemental security income benefits under subchapter XVI of this chapter). As the district court pointed out, these programs are (1) old age assistance, 42 U.S.C. § 301; (2) assistance to the blind, 42 U.S.C. § 1201; (3) aid for the permanently and totally disabled, 42 U.S.C. § 1351; (4) Supplemental Security Income for the Aged, Blind and Disabled, 42 U.S.C. § 1381; and (5) Aid to Families with Dependent Children, 42 U.S.C. § 601. The district court thought the parenthetical did not apply to plaintiffs because they “do not receive benefits under any of these programs.” While the latter may be so, the parenthetical does not speak of those who actually receive benefits under the named programs, but rather of “any applicant or recipient who would, except for income and resources, be eligible for aid or assistance.” 42 U.S.C. § 1396a(a)(17) (emphasis supplied); see also Sherman v. Griepentrog, 775 F.Supp. at 1391 (“[t]he District Court of Maine [in Lamore ] failed to consider the import of the language ‘any applicant or recipient who would, except for income and resources, be eligible for aid.’ ”) (emphasis in original). Thus, the district court was incorrect that the plaintiffs’ non-receipt of benefits under the named programs demonstrated that the parenthetical did not apply to them. The federal and state defendants, however, give another, more persuasive reason for construing the parenthetical to omit plaintiffs. According to the Secretary of the United States Department of Health and Human Services, the parenthetical should be read to encompass only “medically needy" individuals. In 42 U.S.C. § 1396a(a)17 Congress explicitly delegated to the Secretary the broad authority to prescribe standards for assessing an applicant’s eligibility for, and the extent of medical assistance under, a State Medicaid Plan. In the face of such an explicit delegation of authority, the Secretary’s interpretation of the parenthetical and the “as would not be disregarded” language is “ 'entitled to more than mere deference or weight.’ ” Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981) (quoting Batterton v. Francis, 432 U.S. 416, 426, 97 S.Ct. 2399, 2406, 53 L.Ed.2d 448 (1977)); Herweg v. Ray, 455 U.S. 265, 274, 102 S.Ct. 1059, 1066, 71 L.Ed.2d 137 (1982). “Because Congress has entrusted the primary responsibility of interpreting a statutory term to the Secretary rather than to the courts, his definition is entitled to 'legislative effect’ ” Herweg, 455 U.S. at 275, 102 S.Ct. at 1066; Gray Panthers, 453 U.S. at 44, 101 S.Ct. at 2640; Batterton, 432 U.S. at 425, 97 S.Ct. at 2405. Our standard for reviewing the Secretary’s interpretation of Section 1396a(a)(17), therefore, is limited to “determining whether the Secretary has exceeded his statutory authority” and whether the policy of including Aid and Attendance benefits in income for purposes of the post-eligibility determination in the Waiver program “is arbitrary and capricious.” Herweg, 455 U.S. at 275, 102 S.Ct. at 1066; Gray Panthers, 453 U.S. at 44, 101 S.Ct. at 2640; Batterton, 432 U.S. at 426, 97 S.Ct. at 2406. As the Secretary’s reading of Section 1396a(a)(17) seems perfectly consistent with the Medicaid statutory scheme and the relevant legislative history, we have little question that we should defer to it. Hence, we affirm the district court, although on the different basis of the Secretary’s interpretation of the parenthetical as referring only to the “medically needy” — a group that does not include plaintiffs. IV. The Medicaid statute provides for three classes of eligible persons: the “categorically needy,” the “medically needy” and the “categorically optionally needy.” The “categorically needy” are those individuals who are eligible to receive assistance under either the Aid to families with Dependent Children program (“AFDC”), 42 U.S.C. § 601 et seq. (1982), or the Supplemental Security Income Program for the Aged, Blind and Disabled (“SSI”), 42 U.S.C. § 1381 et seq. See 42 U.S.C. § 1396a(a)(10)(A)(i); 42 C.F.R. § 435.1(b)(ii) (1984); see also Gray Panthers, 453 U.S. at 37 & n. 1, 101 S.Ct. at 2637 & n. 1; Camacho v. Perales, 786 F.2d 32, 33 (2d Cir.1986). The “medically needy” are those individuals who “(a) meet the non-financial eligibility requirements for cash assistance under AFDC or SSI, and (b) have income or resources that exceed the financial eligibility standards of the relevant program but that are considered insufficient to pay for necessary medical care." Camacho, 786 F.2d at 33-34; see 42 U.S.C. § 1396a(a)(10)(C); 42 C.F.R. § 435.1(b)(3)(i); see also Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2637 (the “medically needy” are “persons lacking the ability to pay for medical expenses, but with incomes too large to qualify for categorical assistance”). Finally, the “optionally categorically needy” are “(1) individuals who would be eligible for, but for some reason are not receiving, SSI benefits and (2) individuals who would be eligible for SSI benefits but for their institutionalized status. 42 C.F.R. §§ 435.210-435.211.” Herweg, 455 U.S. at 269, 102 S.Ct. at 1063; see 42 U.S.C. § 1396a(a)(10)(A)(ii). Plaintiffs are described in 42 U.S.C. § 1396a(a)(10)(A)(ii)(VI), see supra note 7, and are, therefore “optionally categorically needy.” The language of the parenthetical at issue in 42 U.S.C. § 1396a(a)(17), on the other hand, well describes the “medically needy.” The parenthetical speaks of those individuals “who would, except for income and resources, be eligible for aid or assistance in the form of money payments under any plan by the State approved under subchapter I, X, XIV, or XVI or part A of subchapter IV, or to have paid with respect to him supplemental security income benefits under subchapter XVI of this chapter.” As mentioned, the referenced programs are old age assistance, assistance to the blind, aid for the permanently and totally disabled, Supplemental Security Income for the Aged, Blind and Disabled, and Aid to Families with Dependent Children. They are the same cash assistance programs as would allow a person to qualify as categorically needy. See 42 U.S.C. § 1396a(a)(10)(A)(i). Thus, the parenthetical can sensibly be construed to refer to the “medically needy” — those persons who “except for income and resources” would qualify as categorically needy. See Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2637 (the medically needy are “persons lacking the ability to pay for medical expenses, but with incomes too large to qualify for categorical assistance”); Camacho, 786 F.2d at 33-34; Friedman v. Berger, 547 F.2d 724, 726 (2d Cir.1976) (the “medically needy” are those whose “annual income is too low to meet their medical expenses including the enormous cost of institutional care but too high to qualify them for the federal cash grant program providing ‘Supplemental Security Income’ (SSI) for the aged, blind, and disabled.”), cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977). Because it is reasonable to construe the parenthetical to refer to the medically needy, we see no basis for disturbing the Secretary’s interpretation to that effect. It follows that the requirement in Section 1396a(a)(17) that the standards for determining eligibility for and the extent of medical assistance under a State plan must take into account only such income “as would not be disregarded ... in determining eligibility for such aid, assistance, or benefits [described in the parenthetical],” applies only “in the case of” the “medically needy.” See Friedman, 547 F.2d at 727-28. This interpretation is consistent with the legislative history of the Medicaid statute as it relates to the “medically needy.” As the Second Circuit noted in Camacho v. Perales, “Congress included , in § 1902(a)(10)(B)(i) of the [Medicaid] Act a provision that required states electing to provide Medicaid to the medically needy to determine the applicant’s Medicaid eligibility by using standards “comparable” to those used in determining eligibility for the related cash assistance program.” 786 F.2d at 39 (citing Pub.L. No. 89-97, § 1902(a)(10)(B)(i), 79 Stat. 286, 345 (1965)). The legislative history accompanying the enactment of this provision provides that States are required to: take into account only such income and resources as ... are actually available to the applicant or recipient and as would not be disregarded ... in determining the eligibility for and the amount of the aid or assistance in the form of money payments for any such applicant or recipient under the title of the Social Security Act most appropriately applicable to him. S.Rep. No. 404, 89th Cong., 1st Sess., pt. 1 at 78 (1965), reprinted in 1965 U.S.Code Cong. & Admin.News 1943, 2018; see Camacho, 786 F.2d at 39. Plaintiffs are “optionally categorically needy” and not “medically needy.” Since the Medicaid statute places no similar restriction on the standards for determining the extent of medical assistance for the “optionally categorically needy,” we hold that the state defendant’s policy — at the direction of the Secretary — of including Veterans Aid and Attendance benefits in income for purposes of determining the amount an eligible individual must contribute toward his or her own care under the home and community based waiver program while excluding the same benefits for purposes of determining eligibility -is not inconsistent with federal law. Affirmed. Costs to appellees. . Prior to bringing suit in state court, each plaintiff requested and received a fair hearing regarding the effect of the change in policy on the payments each was required to make towards his or her own care. In each case the decision of the Fair Hearing Officer affirmed the Department of Human Services’ decision. . Section 3701.2 of the Health Care Finance Administration State Medicaid Manual provides: For purposes of the posteligibility process, total income includes all amounts of income available to the individual ... from all sources, which are considered to be income for purposes of eligibility whether counted or disregarded. **** Total income also includes payments made directly to the individual under a Federal, State, or local government program for medical or remedial care or social services which are not considered to be income for purposes of eligibility, e.g., Veterans Administration payments for aid and attendance.... HCFA State Medicaid Manual § 3701.2. . The State changed its policy after consultation with Alfred G. Fuoroli, the Associate Regional Administrator for the Health Care Financing Administration (HCFA) of the Department of Health and Human Services. In a letter dated November 21, 1989, Mr. Fuoroli stated that HCFA’s position on VA A and A payments was clarified in proposed rules in the Federal Reg-ister_ The proposed rules revised regulations in six places ... so that the last sentence in each, pertaining to what is income, reads: "It also includes payments made directly to the individual under a Federal, State, or local government program for medical or remedial care or social services, which are not considered to be income for purposes of eligibility, e.g. Veterans administration payments for aid and attendance.... My staff confirmed with our central office that the policy expressed in the proposed regulation remains as HCFA policy pending final regulations.... Letter from Alfred G. Fuoroli, Associate Regional Administrator, HCFA, to Rollin Ives, Commissioner, Maine Department of Human Services (November 21, 1989). .The State’s cross appeal seeks to preserve the viability of any claims that it has against the federal defendant only in the event that this court does not affirm the district court’s decision. . 38 U.S.C. § 1502(b) provides in pertinent part: For purposes of this chapter, a person shall be considered to be in need of a regular aid and attendance if such person is (1) a patient in a nursing home or (2) helpless or blind as to need or require the regular aid and attendance of another person. . 42 U.S.C. § 1396n(d) provides in pertinent part: (1) Subject to paragraph (2), the Secretary shall grant a waiver to provide that a State plan approved under this subchapter shall include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) which are provided pursuant to a written plan of care to individuals 65 years of age or older with respect to whom there has been a determination that but for the provision of such services the individuals would be likely to require the level of care provided in a skilled nursing facility or intermediate care facility the cost of which could be reimbursed under the State plan.... 42 C.F.R. § 435.217 provides: The agency may provide Medicaid to any group or groups of individuals in the community who— (a)Would be eligible for Medicaid if institutionalized; (b) Would require institutionalization in the absence of home and community-based services under a waiver granted under Part 441, Subpart G, of this subchapter;, and (c) Receive the waivered services. .42 U.S.C. § 1396a(a)(10)(A)(ii)(VI) provides in pertinent part: A State plan for medical assistance must— **** (10) provide— (A) for making medical assistance available (ii) at the option of the state, to any group or groups of individuals ... who are not individuals described in clause (i) of this subpara-graph but— (VI) who would be eligible under the State plan under this subchapter if they were in a medical institution, with respect to whom there has been a determination that but for the provision of home or community-based services described in subsection (c), (d), or (e) of section 1396n of this title they would require the level of care provided in a hospital, nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan, and who will receive home or community-based services pursuant to a waiver granted by the Secretary under subsection (c), (d), or (e) of section 1396n of this title. . The Medicaid Statute defines income for purposes of eligibility by reference to the Supplemental Security Income statute. 42 U.S.C. § 1396a(r)(2) and 42 C.F.R. § 435.722(b). 42 U.S.C. § 1396a(r)(2) provides: The methodology to be employed in determining income and resource eligibility for individuals under subsection ... (a)(10)(A)(ii) ... of this section ... may be less restrictive, and shall be no more restrictive, than the methodology— (i) in the case of groups consisting of aged, blind, or disabled individuals, under the supplemental security income program under subchapter XVI of this chapter, or (ii) in the case of other groups, under the State plan most closely categorically related. 42 C.F.R. § 435.722(b) provides: In determining the eligibility of individuals under the income standards established under this section [dealing with individuals needing nursing home level care], the agency must not take into account income that would be disregarded in determining eligibility for SSI or for an optional State supplement [to SSI]. The SSI definition of income is found in 20 C.F.R. § 416.1103, which is quoted in the text supra. . Section 1396a(a)17 provides that a state plan for medical assistance must provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient and (in the case of any applicant or recipient who would, except for income and resources, be eligible for aid or assistance ...) as would not be disregarded.... 42 U.S.C. § 1396a(a)17 (emphasis supplied). . Because the instant case is susceptible to resolution on the basis discussed herein, we need not address, and express no opinion on, the question of whether appellants’ grievance, if it were well founded, could be redressed by means of a suit against the state defendant. See generally Stowell v. Ives, 976 F.2d 65 (1st Cir.1992). . Plaintiffs in Friedman were "medically needy” because "their income [was] too low to meet their medical expenses ... but too high to qualify them for the federal cash grant program providing ‘Supplemental Security Income’ (SSI) for the aged, blind, and disabled.” 547 F.2d at 726. Interpreting the relevant parenthetical in section 1396a(a)(17) and the language following it the Second Circuit stated: In other words, for persons such as plaintiffs, who would be eligible to receive SSI benefits because of their age, blindness or disability were it not for their income, state standards must provide that income which is disregarded in determining SSI eligibility also be disregarded in determining eligibility for and the extent of medical assistance under Medicaid. Id. at 728 (emphasis supplied). . In subsequent legislation Congress has acknowledged the disparate post-eligibility treatment of aid and attendance benefits for Medicaid recipients. The House Conference Report of the Omnibus Reconciliation Act of 1990 contained the following passage: (8) Charges Applicable in Cases of Certain Medicaid-Eligible Individuals. There are circumstances in which, under current law, a State may not actually be making payments to a nursing home on behalf of a resident who is eligible for Medicaid. For example, a nursing home resident may be receiving Veterans’ Administration aid and attendance payments. These payments are not taken into account in determining initial eligibility for Medicaid, but are considered, post-eligibility, in determining the amount of an individual’s monthly income that is available to be applied to the cost of care. H.R.Conf.Rep. No. 964, 101st Cong., 2d Sess. 843 (1990), reprinted in 1990 U.S.Code Cong. & Admin.News 2374, 2584. . Plaintiffs contend that the state defendant’s Medicaid policy violates the Veteran's benefit laws of the United States. In support of their argument plaintiffs rely solely on the following general policy statement in the legislative history of the Veterans and Survivors Improved Pension Act of 1978, 38 U.S.C. §§ 501-508, 521-523: It is intended that the new position system, as authorized by the reported bill, should: First, assure a level of income above the minimum subsistence level allowing veterans and their survivors to live out their lives in dignity. Second, prevent veterans and widows from having to turn to welfare assistance Third, provide the greatest pension for those with the greatest needs. Fourth, guarantee regular increases in pension which fully account for increases in the cost of living. H.R.Rep. No. 1225, 95th Cong., 2d Sess. 4 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5583, 5585. We agree with the district court that this statement alone provides no basis for finding that Aid and Attendance benefits must be treated in a specific way in the Medicaid statute. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_appel1_8_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. AMERICAN TRUST COMPANY, a Corporation, Appellant, v. James G. SMYTH, Collector of Internal Revenue and United States of America, Appellees. No. 15339. United States Court of Appeals Ninth Circuit. July 8, 1957. Brobeck, Phleger & Harrison, Howard J. Fink, Theodore R. Meyer, San Francisco, Cal., Davis, Polk, Wardwell, Sunderland & Kiendl, Montgomery B. Angelí,-David A. Lindsay, New York City, for appellant; Charles K. Rice, Asst. Atty. Gen., Homer R. Miller, Hilbert P. Zarky, Attys., Dept, of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., Lynn J. Gillard, Asst. U. S. Atty., San Francisco, Cal., for appellees. Before ORR, POPE, and FEE, Circuit Judges. . § 161 of the Internal Revenue Code of 1939 provided that income to trusts would be taxed to the trust the same as it is taxed to individuals, including accumulated income held for future distribution under the terms of a trust. § 162(h) allowed a deduction to the trust for income of the year which is currently distributable to the beneficiaries. 26 U.S.C.A. §§ 161, 162(b). ORR, Circuit Judge. Appellant, as trustee of a testamentary trust created by the will of Harry L. Tevis, paid a tax in the sum of $570,-957.86 on its fiduciary income for the trust for the year 1946. A claim for refund was seasonably filed and was thereafter disallowed by the Commissioner of Internal Revenue. This suit for refund followed. The trial court denied relief. Tevis died on July 19, 1931, in Santa Clara County, California, where his will was duly probated and the trust in question created. The trust required the rents, issues and profits of the trust estate to be paid in equal shares to the children of the testator’s niece, Florence Fermor-Hesketh, born prior to the decedent’s death, or to their survivors, during their lives. During 1946 the four living beneficiaries of the trust were domiciled and residents of the United Kingdom. A portion of the trust is to terminate upon the death of each of the four beneficiaries. During 1946 the trustee, a California corporation, sold certain shares of stock from the corpus of the trust, thereby realizing a long-term capital gain. Under the terms of the trust, and the law of California, this capital gain was allocated to the corpus, there to be held until distribution upon termination of the trust. If any income taxes on the capital gain could be legally assessed, it would be chargeable to the corpus. The problem for solution is: was the capital gain here involved exempt from United States income tax by virtue of Article XIY of Income Tax Convention between the United States and the United Kingdom of Great Britain and Northern Ireland, signed April 16, 1945, effective January 1, 1945, 60 Stat. 1377, hereafter the “Treaty”. Article XIV of the Treaty provided: “A resident of the United Kingdom not engaged in trade or business in the United States shall be exempt from United States tax on gains from the sale or exchange of capital assets.” It is agreed that the beneficiaries were not engaged in trade or business in the United States during 1946. § 22(b) (7), Internal Revenue Code of 1939, 26 U.S.C.A. § 22(b) (7), provided : “(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this chapter: * * * “(7) Income exempt under treaty. Income of any kind, to the extent required by any treaty obligation of the United States.” The following Treasury Regulation was in force and effect in 1946: “Sec. 7.519 Exemption from, or reduction in rate of, United States Tax in the Case of Dividends, Interest, Royalties, Natural Resource Royalties, and Real Property Rentals. ****** “Beneficiaries of an estate or trust. — A nonresident alien who is a resident of the United Kingdom and who is a beneficiary of a domestic estate or trust shall be entitled to the exemption, or reduction in the rate of tax, as the case may be, provided in Articles VI, VII, VIII, IX, and XIV of the convention with respect to dividends, interest, royalties, natural resource royalties, rentals from real property, and capital gains to the extent such item or items are included in his distributive share of income of such estate or trust if he is taxable in the United Kingdom on such income and is not engaged in trade or business in the United States through a permanent establishment. * * ” (Italics supplied.) The Government contends that while the Treaty exempts the capital gains tax on the distributive share of the British beneficiaries, it does not extend the exemption to the trust which, it is urged, is a separate taxable entity under the Internal Revenue Code. The Government’s argument is bottomed upon the theory that the capital gain resulting from the sale of trust property was not income of the beneficiaries and remaindermen of the trust, but was income taxable to the trustee. In an attempt to sustain this theory, resort is had to the domestic scheme of taxation in the United States where a trust is conceded to be a distinct taxable entity, subject to taxation upon income which is not currently distributable to the beneficiaries. Appellant concedes that were it not for the Treaty provision, this argument might be entirely proper, but insists that Article XIV of the Treaty controls and by its terms exempts not only the tax on the capital gain upon the British beneficiaries, but also the tax upon the trust retaining the gain, nothwithstanding absence of a current distribution. We conceive the purpose of the Treaty to have been full reciprocity and equality of tax treatment between nationals of the United States and the United Kingdom. Such being the case, this purpose requires a broad construction of Article XIV, so as to relieve the British beneficiaries from the burden of the capital gains tax to the same extent, in a given situation, as a United States beneficiary would be in a similar position in the United Kingdom. A broad, equitable purpose of the Treaty to exempt capital gains from taxation when a United Kingdom resident would otherwise sustain the burden of the tax directly or indirectly should be given effect without regard to our domestic scheme of taxation, in which the interposition of a bare legal title in the trustee is considered a separate taxable entity. A treaty, being a compact between two sovereigns, must be construed broadly to accomplish the intent of the contracting parties. Such an intent is not consonant with the Government’s position in this case. “Where a treaty admits of two constructions, one restrictive as to the rights, that may be claimed under it, and the other liberal, the latter is to be preferred. Shanks v. Dupont, 3 Pet. 242, 7 L.Ed. 666. Such is the settled rule in this court.” Hauenstein v. Lynham, 1879, 100- U.S. 483, 487, 25 L.Ed. 628. “In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations and the good faith of treaties, as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. For that reason if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred. Jordan v. K. Tashiro, 278 U.S. 123, 127, 49 S.Ct. 47, 73 L.Ed. 214; Geofroy v. Riggs, 133 U.S. 258, 271, 10 S.Ct. 295, 33 L.Ed. 642; In re Ross, 140 U.S. 453, 475, 11 S.Ct. 897, 35 L.Ed. 581; Tucker v. Alexandroff, 183 U.S. 424, 437, 22 S.Ct. 195, 46 L.Ed. 264; Asakura v. City of Seattle, 265 U.S. 332, 44 S.Ct. 515, 68 L.Ed. 1041.” Factor v. Laubenheimer, 1933, 290 U.S. 276, 293, 54 S.Ct. 191, 195, 78 L.Ed. 315. This is also true as to the Income Tax Convention, its purpose being to secure reciprocity and equality of tax treatment between the nationals of the two contracting parties. The Income Tax Convention between the United States and the United Kingdom has the status of a treaty, and consequently, is “the supreme Law of the Land.” U. S.Const., art. VI, cl. 2. In construing the terms of the Treaty, we are constrained to look “within the four corners of the Treaty” keeping in mind the purpose of the contracting parties. Any resort to domestic law must be derived from the express terms of the Treaty itself. Article 11(3) of the Treaty provides: “In the application of the provisions of the present Convention by one of the Contracting Parties any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting Party relating to the taxes which are the subject of the present Convention.” The precise provisions of Article XIV, viz.: “resident of the United Kingdom” is specifically defined by the Treaty; “gains from the sale or exchange of capital assets” has a special meaning derived from both statute and judicial decision in United States tax law. But “exempt” is nowhere defined in the Treaty, nor in the Internal Revenue Code of 1939. Therefore, we are required to construe the term “exempt” in accordance with what we believe to be the intent of the contracting parties, in order to achieve reciprocity between similarly situated United States and United Kingdom taxpayers. We think “exempt” was employed in its broadest meaning, signifying a release from economic burden. If the capital gains tax is imposed on the trust in the instant case, the United Kingdom beneficiaries and remaindermen are burdened economically with the United States tax, as it diminishes both their respective incomes and corpus distributions. We are not persuaded that the contracting parties intended such an economic burden be placed on United Kingdom taxpayers, when in a similar situation a United States income beneficiary or remainderman would not have a similar burden arising from United Kingdom taxation. A study of the Articles of the Convention indicates an attempt to achieve a thoroughgoing reciprocity between the two nations’ taxpayers in similar situations. Upon its face Article XIV does not portray any concession by the United Kingdom. The policy of reciprocity is apparent, however, when it is realized that the United Kingdom does not impose an income tax upon capital gains; it is obvious there was no occasion for any express concession on this point by it. The exemption found in Article XIV is not solely limited to a United Kingdom resident who would report and pay the tax. An analogous situation occurs when a United Kingdom resident holding legal title to a capital asset located in the United States sells it at a gain; in such a situation there is no question but that he would be exempt under Article XIV. Then, if the broad and overriding intent of the contracting parties to achieve reciprocity is to be given effeet, how can a distinction reasonably be made where the United Kingdom resident has equitable ownership ? The Government’s contention that the trust is a separate taxable ■ entity under domestic law and hence not a resident of the United Kingdom, is rather finely drawn and entirely overlooks the evident purpose of the Treaty. The phrase “A resident of the United Kingdom” found in Article XIV, and defined in Article 11(1) (g), does not refer to concepts of tax entities under American, domestic tax law. The relevant concept is the economics burden upon the individual taxpayer, and the chief purpose of the Treaty is relief from the economic burden of double taxation. The Proclamation preceding the Treaty,. which reads: “Desiring- to conclude a Convention for the avoidance of' double - taxation and the prevention of fiscal evasion with respect to taxes ■ on income, * *” sustains our conclusion. Article XIV exempted the tax upon the capital gain to the trust. The intervention of a trust and trustee having legal title did not contradict the pattern of reciprocal taxation and impose an unintended economic burden. The fact that the Income Tax Convention between the United States and the United Kingdom does not contain a “savings clause” found in sixteen of twenty Tax Conventions negotiated by the United States is significant. Treaties containing ' the usual “savings-clause” were negotiated both before and after the United Kingdom Treaty. The-■purpose of the “saving clause”, as we-read it, was to make plain that the United States reserved the right to include-all items of income taxable under it» revenue laws. Hence, were we here dealing with a -treaty containing a saving» clause, a different result might possibly ■be reached. Thus, it seems that the- , savings clause was incorporated into certain treaties with the express purpose of limiting exemptions. Its omission from the United Kingdom Treaty is further evidence of a purpose to exempt completely income from capital gains belonging to residents of the United Kingdom, regardless of where lodged between the time of receipt and distribution. Reversed. . When the trust was created, Florence Fermor-Hesketh had live living children who became beneficiaries. One died in 1937, prior to the year in question, and a second child died in 1955. . T.D. 5569, Section 7.519(c), 1947-2 Cum.Bull. 100,114. . Art. 11(1) (g) reads: “The term ‘resident of the United Kingdom’ means any person (other than a citizen of the United States or a United States corporation) who is resident in the United Kingdom for the purposes of United Kingdom tax and not resident in the United States for the purposes of United States tax. A corporation is to be regarded as resident in the United Kingdom if its business is managed and controlled in the United Kingdom.” . See note 4, supra. . See Article VI of the Treaty for the treatment of corporate dividends, where the crucial principle involves economic burden upon individuals. Reciprocity is achieved by reducing the United States withholding tax on dividends received by United Kingdom residents, and exempting dividends received by United States residents from the United Kingdom surtax. . A typical “savings clause” is found in the Income Tax Convention between the United States and Sweden, 1940, 54 Stab 1759, wherein Art. XIV reads: “It is agreed that double taxation shall he avoided in the following manner: “(a) Notwithstanding any other provision of this convention, the United States of America in determining the income and excess-profits taxes, including all surtaxes, of its citizens or residents or corporations, may include in the basis upon which such taxes are imposed all items of income taxable under the rev- ' enue laws of the United States of Ame'rica as though this Convention had not come into effect. The United States of America shall, however, deduct the amount of the taxes specified in Article 1(b) (1) and (3) of this Convention or other like taxes from the income tax thus computed but not in excess of that portion of the income tax liability which the taxpayer’s net income taxable in Sweden bears to his entire net income.” The following tax conventions contain a typical savings clause, as set out above: Canada, 1941; France, 1945; Sweden, 1940; Union of South Africa, 1946; Denmark, 1948; Netherlands, 1947; Belgium, 1953; Norway, 1951; Greece, 1953; Switzerland, 1951; Finland, 1952; Japan, 1955; Federal Republic of Germany, 1954; Italy, 1956; Honduras, 1957; Austria, Exchange of ratifications not yet- made. No savings clause is found in the following tax conventions: United Kingdom, 1945; ■ New Zealand, 1951; Ireland, 1951; Australia, 1953. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
sc_issue_8	10	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. CANTON RAILROAD CO. v. ROGAN et al., CONSTITUTING THE STATE TAX COMMISSION OF MARYLAND. No. 96. Argued November 28-29, 1950. Decided February 26, 1951. John Henry Lewin argued the cause and filed a brief for appellant. Hall Hammond, Attorney General of Maryland,' and Harrison L. Winter, Assistant Attorney General, argued the cause and filed a brief for appellees. [This opinion applies also to No. 205, Western Maryland R. Co. v. Rogan, post, p. 520.] Mr. Justice Douglas delivered the opinion of the Court. The State of Maryland imposes on steam railroad companies a franchise tax, measured by gross receipts, apportioned to the length of their lines within the State. Appellant Canton Railroad Company, a Maryland corporation, challenges the validity of the tax under the Import-Export Clause of the Constitution, Art. I, § 10, cl. 2, insofar as the gross income by which the tax is measured includes revenues derived from the handling of goods moving in foreign trade. Canton is a common carrier of freight operating entirely within the City of Baltimore, Maryland. It maintains a marine terminal in the port of Baltimore and railroad lines connecting this terminal with the lines of major trunk-line railroads. Its operating revenues are derived from services which fall into the following classifications: Switching freight cars from the piers to the lines of connecting railroads. Storage pending forwarding, for which a charge is made for each day beyond a free period. Wharfage, or the privilege of using Canton’s piers for the transfer of cargo to lighters or to trucks. Weighing of loaded freight cars. Furnishing a crane for use in unloading vessels. This crane is operated by a stevedoring company, which pays Canton a set charge per ton for the “crane privilege.” A substantial proportion of the freight moved to and from the port consists of exports from and imports into the United States. In its report to the State Tax Commission for 1946, Canton showed gross receipts from its railroad business in Maryland of $1,588,744.48, of which it claimed $705,957.21 to be exempt from taxation because derived from operations in foreign commerce. After a hearing, the Commission rejected Canton’s contention that a part of its gross receipts was constitutionally exempt from the tax, assessed its gross receipts at the higher figure, and imposed a tax of $39,092.34. The Commission’s order was affirmed both by the Baltimore Circuit Court and by the Court of Appeals of Maryland, two judges dissenting. -Md.-, 73 A. 2d 12. The case is here on appeal. The Constitution commands in Art. I, § 10, cl. 2 that “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws . . . .” The Maryland court held that the tax does not violate this provision of the Constitution; and we agree. If this were a tax on the articles of import and export, we would have the kind of problem presented in Spalding & Bros. v. Edwards, 262 U. S. 66; Richfield Oil Corp. v. State Board, 329 U. S. 69; Hooven & Allison Co. v. Evatt, 324 U. S. 652; and Joy Oil Co. v. State Tax Comm’n, 337 U. S. 286. But the present tax is not on the articles of import and export; nor is it the equivalent of a direct tax on the articles, as was held to be true of stamp taxes on foreign bills of lading (Fairbank v. United States, 181 U. S. 283), stamp taxes on charter parties in foreign commerce (United States v. Hvoslef, 237 U. S. 1); and stamp taxes on policies insuring exports against maritime risks. Thames & Mersey Ins. Co. v. United States, 237 U. S. 19. It is true that the latter cases indicate that the prohibition of the Import-Export Clause against taxes on imports and exports involves more than an exemption from taxes laid upon the goods themselves. Moreover, Crew Levick Co. v. Pennsylvania, 245 U. S. 292, following the reasoning of Brown v. Maryland, 12 Wheat. 419, 444-445, gave like immunity to the business of selling goods in foreign commerce when gross receipts were taxed. Cf. Anglo-Chilean Corp. v. Alabama, 288 U. S. 218. Though appellant is not engaged in the import-export business, it claims that its handling of goods, which are destined for export or which arrive as imports, is part of the process of exportation and importation. In support of the argument it refers to language in Spalding & Bros. v. Edwards, supra, and Richfield Oil Corp. v. State Board, supra, relative to when the export process starts; and it argues that, if the baseballs and the baseball bats in Spalding and the oil in Richfield were immune from the sales taxes because those commodities had been committed to exportation, the same immunity should be allowed here since the goods handled by appellant were similarly committed. The difference is that in the present case the tax is not on the goods but on the handling of them at the port. An article may be an export and immune from a tax long before or long after it reaches the port. But when the tax is on activities connected with the export or import the range of immunity cannot be so wide. To export means to carry or send abroad; to import means to bring into the country. Those acts begin and end at water’s edge. The broader definition which appellant tenders distorts the ordinary meaning of the terms. It would lead back to every forest, mine, and factory in the land and create a zone of tax immunity never before imagined. For if the handling of the goods at the port were part of the export process, so would hauling them to or from distant points or perhaps mining them or manufacturing them. The phase of the process would make no difference so long as the goods were in fact committed to export or had arrived as imports. Appellant claims that loading and unloading are a part of its activities. But close examination of the record indicates that it merely rents a crane for loading and unloading and does not itself do the stevedoring work. Hence we need not decide whether loading for export and unloading for import are immune from tax by reason of the Import-Export Clause. Cf. Joseph v. Carter & Weekes Co., 330 U. S. 422. We do conclude, however, that any activity more remote than that does not commence the movement of the commodities abroad nor end their arrival and therefore is not a part of the export or import process. The objection to Maryland’s tax on the ground that interstate commerce is involved is not well taken. It is settled that a nondiscriminatory gross receipts tax on an interstate enterprise may be sustained if fairly apportioned to the business done within the taxing state (see Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 255) and not reaching any activities carried on beyond the borders of the state. Where transportation is concerned, an apportionment according to the mileage within the state is an approved method. Greyhound Lines v. Medley, 334 U. S. 653, 663. Affirmed. The Chief Justice took no part in the consideration or decision of this case. By Mr. Justice Jackson, whom Mr. Justice Frankfurter joins, reserving judgment. In this case, I reserve judgment in the belief that today’s decision of the Court may be found, upon consideration of matters not briefed or argued, to be untenable. One of the fundamental federal policies, established by the Constitution itself, is that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another . . . .” Art. I, § 9, cl. 6. This policy is further implemented by a requirement that federal duties, imposts and excises be uniform (Art. I, § 8, cl. 1), and by a prohibition of any federal tax or duty on articles exported from a state (Art. I, § 9, el. 5). But this policy of equality of access to the high seas can also be upset by the states. Hence the Constitution forbids any state, without the consent of Congress, to lay any imposts or duties on imports or exports, except to pay the cost of inspection laws. Art. I, § 10, cl. 2. This detailed constitutional concern about exports and imports is a manifestation of a realistic recognition that a state or city with a safe harbor sits at a gateway with not only an inevitable natural advantage, but also a strategic one which may be exploited if not restrained. Political influence of wealthy and populous port areas was feared in the making of federal law, hence the restrictions on Congress. The disposition of cities and states to. exploit their location astride the Nation’s portals also was feared, hence the restriction on the states. If the roads to the ports may be obstructed with local regulation and taxes, inland producers may be made to pay tribute to the seaboard for the privilege of exportation, and the longer the road to port, the more localities that may lay burdens on the passing traffic. The evident policy of the Constitution is to avoid these burdens and maintain free and equal access to foreign ports for the inland areas. If the constitutional policy can be avoided by shifting the tax from the exported article itself to some incident such as carriage, unavoidable in the process of exportation, then the policy is a practical nullity. I think prohibition of a tax on exports and imports goes beyond exempting specific articles from direct ad valorem duties— it prohibits taxing exports and imports as a process. This is a matter of giving the inland farms and factories a fair access to the sea which will enable them to compete in foreign commerce, as well as to make imports as equally available as possible, regardless of distance from port. Ocean rates to a given foreign port are the same from all Atlantic ports, so that any differences in the costs of reaching the coast from the inland cannot be offset and represent net differences in the costs of reaching foreign markets. Congress, the Interstate Commerce Commission, this Court, and American rail and motor carriers have all concurred in the development of rate structures on the premise that exports are to be recognized as such from the time they are delivered to the carrier for export and not merely when they reach the water’s edge. There is a wealth of statutory material relating to the carriage of goods for export by railroads, motor carriers, and shipping companies. Railroads have established lawful tariffs for export goods substantially less than for like goods destined for local markets. Texas & P. R. Co. v. I. C. C., 162 U. S. 197; Texas & P. R. Co. v. United States, 289 U. S. 627. In the latter case, this Court recognized that export and import shipments, although not made on through bills, might lawfully be transported at rates below those charged for domestic traffic between the same points. Id., at 636. The differential, I believe, is sometimes as much as fifty percent of the local tariff over the same route. Of course, if the export character of the goods is not to be recognized until they are ready to board or have boarded ship, this is a rank discrimination against local shippers quite without justification. What Maryland has done, if these goods while in transit do constitute exports, is to tax gross proceeds of their transportation and handling, not merely the profits therefrom. This adds directly to the cost of their reaching ship-side, and the greater distance they travel, the greater possible accumulation of tax burden. Clearly, this is an obstruction in the path of the federal policy. However, the effect of the federal policy on the validity of the Maryland tax was not advanced in the courts below nor here by railroad counsel, so I do not wish to express a final view on the matter. But I suspect today’s decision will cause mischief in quarters we have not considered. Md. Ann. Code (1943 Supp.), Art. 81, §§ 94% and 95. This case involved a federal tax equivalent to 3 per cent of the price “upon all tennis rackets, golf clubs, baseball bats,” etc. Act of Oct. 3, 1917, § 600 (f),. 40 Stat. 300, 316. It presented, as did the Fairbank, Hvoslef, and Thames & Mersey Ins. Co. cases, a question under Art. I, § 9, cl. 5 of the Constitution, which provides, “No Tax or Duty shall be laid on Articles exported from any State.” The tax required of appellant is "upon such proportion of its gross earnings as the length of its line in this State bears to the whole length of its line.” § 95 (b), supra, note 1. As demonstrative that Congress is vitally concerned about exports and imports, see 15 U. S. C. § 173, respecting the annual report on statistics of commerce required of the Director of the Bureau of Foreign and Domestic Commerce, in which he must outline the “kinds, quantities, and values” of all articles exported of imported, showing the exports to and imports from each foreign country and their values, the exports being required to be broken down into those manufactured in the United States and their value, and those manufactured in other countries and their value. Also, although the Interstate Commerce Act does not apply to carriers engaged in foreign commerce insofar as their carriage beyond the limits of the United States is concerned, 49 U. S. C. § 902 (i) (3); 49 C. F. R.. § 141.67, their state-side activities have received considerable attention. Chapter 12, Part III of the Act, relating to water carriers, defines “common carrier by water” as “any person which holds itself out to the general public to engage in the transportation by water in interstate or foreign commerce of passengers or property (Emphasis supplied.) 49 U. S. C. §902 (d). Section 905 (b) of the same Title states: “It shall be the duty of common carriers by water to establish reasonable through routes . . . with common carriers by railroad . . . and just and reasonable rates . . . applicable thereto .... Common carriers by water may establish reasonable through routes and rates . . . with common carriers by motor vehicle. . . .” And § 905 (c) provides that, “It shall be unlawful for any common carrier by water to . . . give . . . any undue or unreasonable preference or advantage to any particular person, port, . . . territory, or description of traffic Further congressional concern is evidenced in 49 U. S. C. § 906 (a) : “Every common carrier by water shall file with the Commission, and print, and keep open to public inspection tariffs showing all rates, fares, charges, classifications, rules, regulations, and practices for the transportation in interstate or foreign commerce of passengers and property between, places on its own route, and between such places and places on the route of any other such carrier or on the route of any common carrier by railroad or by motor vehicle, when a through route and joint rate shall have been established. . . .” See also 49 U. S. C. .§6, par. (12), providing: “If any common carrier subject to this chapter and chapters 8 and 12 of this title enters into arrangements with any water carrier operating from a port in the United States to a foreign country ... for the handling of through business between interior points of the United States and such foreign country, the Commission may by order require such common carrier to enter into similar arrangements with any or all other lines of steamships operating from said port to the same foreign country.” The ever-present concern with through routes and joint rates would appear a strong indication that the Congress regards goods as in export from the time they are first consigned to a carrier for a foreign destination, not from the time they reach the ship on which they are to be carried. Question: What is the issue of the decision? 01. antitrust (except in the context of mergers and union antitrust) 02. mergers 03. bankruptcy (except in the context of priority of federal fiscal claims) 04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death 05. election of remedies: legal remedies available to injured persons or things 06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action. 07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages 08. liability, punitive damages 09. Employee Retirement Income Security Act (cf. union trust funds) 10. state or local government tax 11. state and territorial land claims 12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation) 13. federal or state regulation of securities 14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution) 15. corruption, governmental or governmental regulation of other than as in campaign spending 16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property 17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration) 18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts 19. patents and copyrights: patent 20. patents and copyrights: copyright 21. patents and copyrights: trademark 22. patents and copyrights: patentability of computer processes 23. federal or state regulation of transportation regulation: railroad 24. federal and some few state regulations of transportation regulation: boat 25. federal and some few state regulation of transportation regulation:truck, or motor carrier 26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline) 27. federal and some few state regulation of transportation regulation: airline 28. federal and some few state regulation of public utilities regulation: electric power 29. federal and some few state regulation of public utilities regulation: nuclear power 30. federal and some few state regulation of public utilities regulation: oil producer 31. federal and some few state regulation of public utilities regulation: gas producer 32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline) 33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television) 34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television) 35. federal and some few state regulations of public utilities regulation: telephone or telegraph company 36. miscellaneous economic regulation Answer:
songer_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Ronald SANTELLA, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee. No. 89-3188. United States Court of Appeals, Seventh Circuit. Argued Nov. 7, 1990. Decided July 9, 1991. John L. Gubbins, Gubbins & Associates, Robert P. Sheridan, Chicago, Ill., for plaintiff-appellant. Kelly R. Welsh, Ruth M. Moscovitch, Appeals Div., Jean Dobrer, Asst. Corp. Counsel, and L. Anita Richardson, Corp. Counsel, Office of the Corp. Counsel, Chicago, Ill., for defendant-appellee. Before BAUER, Chief Judge, POSNER, and RIPPLE, Circuit Judges. BAUER, Chief Judge. It has been said that when it comes to getting a city job in Chicago, quite often “It ain’t what you know, but who you know.” Although he thought he did, Appellant Ronald Santella did not know the right people — or, at least, not enough of them. Santella was hired by the Motor Maintenance Division (“Division”) of the Chicago Police Department (“CPD”) on June 1, 1980. His brother Rick just happened to be the director of the Division. Santella thought he was going to be a motor maintenance supervisor, a “career service” position that carries with it certain job protections, including a grievance procedure and for-cause disciplinary procedure with notice and hearing. Santella soon found out, however, that only one motor maintenance supervisor position existed, and it already was filled. So Santella was appointed instead to a vacant slot, that of electrical mechanic (now a career service position, but not at the time Santella was hired). In the ordinary world, when one applies for a job that is held by someone else, that is the end of the matter. The City of Chicago takes a somewhat different approach. When it chooses to do so, the City will hire individuals into a vacant title “in lieu of” another, unavailable position. The individual is paid out of funds allocated to the department for personnel services. The “true” title is assigned after it is included in the following year’s budget. The hiring “in lieu of” scheme commonly is used, even though the City has a perfectly good set of Personnel Rules in place. The Rules are promulgated by the City Director of Personnel pursuant to the Chicago Municipal Code. They require that a person complete seven steps prior to appointment to a career service position. Briefly, the applicant first must fill out an employment application. Then, he must take and pass a career service examination. Next, his name must be placed on the general employment list in rank order based on his examination score. Once these steps have been completed, an applicant becomes eligible for appointment to an existing career service title, but no appointment may be made until the Personnel Commissioner sends the department head a list of eligible candidates for the position and the applicant’s name is selected from the list. Thus, according to the Rules, the Superintendent of Police — the department head of the CPD — is the only official with the authority to make career service appointments within the CPD. If the department head selects one of the certified applicants from the list, then the following individuals must sign off on the appointment on a “PER-14” form: the department head, the Personnel Commissioner, the Budget Director, and the Comptroller. Santella did not jump through any of these hoops because he was an electrical mechanic “in lieu of” of the motor maintenance supervisor position. All in all, it was not a bad deal; he received the higher motor maintenance supervisor’s salary. At first, he was reluctant to take the job because of the somewhat ephemeral nature of the title and because he wanted the added protection of career service status. James Zurawski, the Deputy Superintendent of the Police Department’s Bureau of Administrative Services (the organizational unit that included Santella’s department), assured Santella that an additional motor maintenance supervisor title would be included in the 1981 budget and that he would be appointed to that title. Santella’s brother Rick told him the same thing. Both were half right. Another supervisory title was added to the City’s Annual Appropriations Ordinances for 1981 through 1984. Rick Santella even prepared the official form to facilitate his brother’s reclassification to “Supervisor of Motor Maintenance.” Although the form was approved by all levels of the CPD and was submitted to the Department of Personnel, the position remained vacant. While waiting for reclassification, both Santella and his brother made sure that City officials were kept aware of the situation. Several of them were prodded into action. The City Budget Director reviewed the matter with the patronage chief, the union, and Santella’s brother, and then approved the reclassification. After Santel-la’s department underwent a reorganization and became the Bureau of Technical Services, CPD Deputy Superintendent Matt Rodriguez, who had been appointed to oversee the Bureau, assured Santella (through Rick) that he would receive the supervisory title. Both the Administrative Assistant to the Mayor and the City Comptroller were told by CPD higher-ups that Richard Brzeczek (one of the three individuals who held the post of Superintendent of Police during these events) had approved Santella’s change of title. That information was relayed to Santella. In reality, not Brzeczek, Joseph DiLeonardi (his predecessor), or Fred Rice (his successor) ever authorized the appointment. In 1984, Rick was replaced as head of the Division by Richard Grishaber. Grishaber assured Santella that he could continue to perform supervisory duties, but mere assurances were not enough for Santella. After patiently waiting for reclassification for more than four years, he decided to file a grievance. When Grishaber got wind of this plan, he informed Santella that he would not be receiving the motor maintenance supervisor title after all because of department reorganization. Grishaber also told Santella that another employee would be assuming Santella’s supervisory duties and responsibilities. Grishaber ordered Santella to work as an electrical mechanic (a job, by the way, for which Santella was unqualified) or face termination. Since then, things have not gone well for Santel-la. He did not win his grievance. He never worked as an electrical mechanic because he suffered a job-related injury on October 24, 1984. He has been on disability leave ever since. Santella filed a three-count complaint against the City and Grishaber, individually and in his official capacity as Commander of the Motor Maintenance Division of the CPD. He alleged that defendants breached his employment agreement and violated 42 U.S.C. § 1983 by depriving him of the supervisory title that he had been promised and by demoting him in violation of the Due Process Clause of the Fourteenth Amendment. Santella further claimed that the demotion violated the First Amendment because it was taken in retaliation for his filing a grievance. In two opinions, Santella v. Grishaber, 654 F.Supp. 428 (N.D. Ill.1987) and Santella v. Grishaber, 672 F.Supp. 321 (N.D.Ill.1987), the district court dismissed Grishaber from the case and dismissed Santella’s first amendment count. Many of Santella’s other claims either were dismissed or withdrawn. The breach of employment contract claim survived “to the extent it [was] based on alleged contractual commitments made while appropriations for the Supervisor position were in place.” 672 F.Supp. at 330. The district court directed Santella to file an amended complaint to clarify exactly what commitments were made to him during the relevant period. Santella did just that. In a second amended complaint, he listed the several occasions on which City officials had promised him the supervisory title. He alleged that, through these promises, he had acquired a property interest in the title and was deprived of that interest without due process of law and in violation of state contract law. As before, he asked for declaratory and injunctive relief and lost compensation and benefits. The district court granted the City’s motion for summary judgment on the grounds that Santella could not have acquired a property interest in the title because the City officials who promised it to him did not have the authority to make such a promise. The court also ruled that Santella failed to qualify for the position under the City’s Personnel Rules. Santella v. City of Chicago, 721 F.Supp. 160, 167 (N.D.Ill.1989). The pendent state breach of contract claim was dismissed without prejudice to allow Santella to pursue it in state court. We review de novo the district court’s grant of summary judgment to the City. “[W]e must decide whether the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to the judgment as a matter of law.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989). A genuine issue of material fact exists only when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the evidence presented by the nonmovant is merely colorable or is not significantly probative, summary judgment is proper. Id. at 249-50, 106 S.Ct. at 2510-11. Did Santella have a protected property interest in the supervisory title? The district did not think so because “the only person with ultimate authority to have made the appointment was and is CPD’s Superintendent, and no Superintendent (including Brzeczek) has ever appointed San-tella to the Supervisor’s title.” Santella, 721 F.Supp. at 165. To counter that argument, Santella primarily relies on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), a case in which a nontenured college professor was denied renewal of his annual contract without a hearing. The professor alleged that he had a property interest in his employment fostered by the college administration having written in its official faculty guide that a faculty member should feel secure that he had permanent employment as long as his work was satisfactory. The Supreme Court stated that, “A person’s interest in a benefit is a ‘property’ interest for due process purpose if there are such rules or mutually explicit understandings that support his claim of entitlement to the ben-efit_” Id. at 601, 92 S.Ct. at 2699 (emphasis supplied). The assurances given to Santella that he would be reclassified cannot be considered such “mutually explicit understandings.” We indicated in Wolf that it is now “firmly established” that “the ‘mutually explicit understandings’ that constitute property interests under the holding of Perry cannot be based on the representations of government officials who are not authorized to make such representations.” 870 F.2d at 1334. See also Shlay v. Montgomery, 802 F.2d 918, 923 (7th Cir.1986) (city corporation counsel’s promise that a new hire would have a career position is unenforceable against the city and thus does not give rise to a property right); Hadley v. County of DuPage, 715 F.2d 1238, 1242 (7th Cir.1983) (no entitlement to public employment where county board not bound by unauthorized assurances of continued employment by individual board members), cert. denied, 465 U.S. 1006, 104 S.Ct. 1000, 79 L.Ed.2d 232 (1984). The City Personnel Rules unequivocally state that the department head —here, the Superintendent of Police—is the only individual vested with the authority to make career service appointments within his own departments. Promises may have been made to Santella. They might even have been made by some very influential people. But because they were not made by the only person who counted, they were unauthorized, nonbinding, and without legal effect. The district court had yet another reason for holding that Santella could not have had a legitimate expectation of receiving the supervisory title: the officials who assured him that the reclassification was a “done deal” were acting in contravention of City regulations that mandate a set procedure for career service appointments. The district court put it succinctly: “Promises, however well-intended and sincere, cannot take the place of the required formal action.” Santella, 721 F.Supp. at 165. Santella agrees with the district court that career service positions must be secured by the procedures set forth in the Personnel Rules, but he and the court part company over the role of the hiring “in lieu” scheme. Santella contends that in addition to the procedures provided in the Personnel Rules, hiring “in lieu” represents a second, de facto method of obtaining a job title in Chicago and that he had every right to rely upon it to support his claim of entitlement. He believes that the district court fundamentally misunderstood how hiring “in lieu” works, in that the court concluded that “the title was something independent from the position it described, and that reclassification was a special undertaking which was, under the system, contingent and uncertain even though hiring to the position had been accomplished.” Appellant’s Brief at 32. Santella suggests that, in his case, appointment to a nonconforming title in lieu of his “actual” title was purely for budgetary reasons. The reclassification of title was “to reflect the reality” of the position that he already held. Id. at 31. He insists that because he was hired de facto for the position of supervisor, and performed the role of supervisor, he was entitled to enjoy the benefits of the position. Santella’s argument seems to be that “in lieu” hiring results in automatic accession to a position once it is created, funded, or included in the annual budget. The district court disagreed and determined that merely giving someone a job “is not the same as conferring the legal title of Supervisor (the only thing in which Santella could even arguably seek to assert the ‘property’ interest needed to implicate the Due Process clause).” Id. (emphasis in original). Like the district court, we find that Santella has come up empty-handed. He has failed to muster any facts to support a theory that title “in lieu” is tantamount to an actual appointment to a career service position. Santella’s evidence describes in detail how the “in lieu” system works and suggests that “in lieu of” hiring was for payroll purposes only, but nowhere does it state that movement to a career service title is a fait accompli once a hiree starts drawing a salary and the “proper” title is added to the annual budget. A good example is the affidavit of Anthony Fratto, former City Comptroller. Fratto stated that after a City department requests that the individual be hired into a specific job title “in lieu of” a vacant title, his salary comes out of the department’s personnel service account. The title then is included in the next appropriation ordinance and the paperwork at City Hall reflects the change. This much we know, but there is no statement to the effect that a person in such a position somehow magically ascends to the title reflecting his actual job duties. To the contrary, Fratto acknowledged that such a hiring arrangement would fall apart if there were no available funds in the personnel services account and the City intended to pay for the services from an account earmarked for items other than personnel services. Hiring “in lieu” is an established policy that has provided the City of Chicago with greater flexibility to handle personnel problems. The City’s Personnel Policy manual refers to hiring “in lieu” and even provides forms for the process. With hiring “in lieu,” a department head need not be hampered by rigid appropriation rules when a particular person is essential for a job and no position is available. With hiring “in lieu,” it also is possible to endrun the bureaucracy in order to finagle a spot on the City payroll for a close relative. Despite the fact that the practice has been around for a while, it is no substitute for personnel rules providing for formal application and approval by a department head. Nor is it sufficiently certain to give rise to a legitimate property interest in the titles to which “in lieu” hirees aspire. Thus, for the reasons discussed in this opinion, the judgment of the district is Affirmed. 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_geniss	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. 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". The F & M SCHAEFER BREWING CO., Petitioner-Appellee, v. LOCAL 49, INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF AMERICA, Respondent-Appellant. No. 347, Docket 34007. United States Court of Appeals Second Circuit. Argued Dec. 5, 1969. Decided Jan. 16, 1970. Hays, Circuit Judge, dissented. Bernard N. Katz, Philadelphia, Pa. (Meranze, Katz, Spear & Bielitsky, Philadelphia, Pa., Steinberg & Wiley, Theodore Wiley, New York City, on the brief), for respondent-appellant. David I. Goldblatt, New York City (Proskauer, Rose, Goetz & Mendelsohn, Edward Silver, New York City, on the brief), for petitioner-appellee. Before WATERMAN, HAYS and FEINBERG, Circuit Judges. FEINBERG, Circuit Judge: This is an appeal from an order of the United States District Court for the Southern District of New York, Harold R. Tyler, Jr., J., staying arbitration of a grievance brought by Local 49, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (the Union), under a collective bargaining agreement with the F & M Schaefer Brewing Co. (the Company) . The litigation began in the state courts when the Company sought to enjoin an arbitration proceeding instituted by the Union. The Union removed the action to the federal court and filed answering papers which sought to compel arbitration. Both parties moved for summary judgment on the basis of affidavits and exhibits. Thereafter, Judge Tyler granted the Company’s motion and stayed the arbitration; the Union’s cross-motion was denied. On the Union’s appeal, we hold that it w.as error to stay the arbitration. The collective bargaining agreement, which runs from May 1, 1968 to April 30, 1971, covers drivers and helpers employed by the Company to distribute beer from the Company’s depot in Syracuse, New York. The controversy that led to this litigation arose in April 1969. Prior to that time, deliveries of beer to the Company’s customers in the Utica-Rome area of New York State had apparently been handled through a local distributor. In April, the Company began to use its own employees, which were represented by the Union, to make the deliveries formerly handled by the independent distributor. Shortly thereafter, the Union filed a grievance as follows: Want to be paid a fair and just wage for traveling time on new route’s (sic) started April 10, 1969 which take in the cities of Utica and Rome and surrounding territories. According to the slim record before us, the Union then submitted to the New York State Board of Mediation for arbitration the questions of “proper method of compensation and constitution of the runs.” In May, the Company brought its action to stay the arbitration. The contract provides procedures for “GRIEVANCES AND ARBITRATION” in Section 21, which provides in subsection (b): Other grievances, disputes, or differences relating to the interpretation or application of this agreement shall be taken up in the first instance by the appropriate Union agent and the Employer’s representatives. If a mutually satisfactory adjustment is not arrived at by them within five (5) days, unless extended by mutual agreement, the matter shall be submitted for arbitration by an arbitrator designated by the New York State Board of Mediation, and the award of such arbitrator shall be final and binding on both sides. The Company’s position — argued successfully before Judge Tyler — is that the grievance does not relate to “the interpretation or application” of any section of the agreement and is therefore not arbitrable. The Union retorts that this is not so and refers to various sections of the contract upon which it relies. The teaching of the cases is plain. We are instructed in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S. Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960): An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. Indeed, in United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L. Ed.2d 1403 (1960), we are told: The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. The processing of even frivolous claims may have therapeutic values of which those who are not a part of the plant environment may be quite unaware. [Emphasis added; footnotes omitted.] We turn from the applicable law to the specific grievance here involved. The Union’s basic claim is that the Company cannot apply the contract rates to work that is radically different (here presumably a long-distance run) and not in existence when the contract was negotiated. The Company argues that the agreement provides no geographical limit on the deliveries to which the contract rates apply. The Union’s position may not be a strong one but its claim is certainly not unusual; disputes over alleged changes in job content or creation of new jobs are common. The Union’s grievance here is a dispute about “application” of the agreement's pay rates to “new” work. Accordingly, it falls squarely within the terms of the arbitration provisions. Whether the Union’s position on the merits is weak or strong is irrelevant; that is to be determined by the arbitrator. While we have recognized that a grievance may be so outrageous as to pervert the grievance procedure, see International Union of Electrical Workers v. General Electric Co., 407 F.2d 253, 259 n. 12 (2d Cir. 1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969), this case is far short of that. The district judge was evidently led astray by the phrasing of the initial grievance — “[w]ant to be paid a fair and just wage * * The judge held that since the arbitrator is not given the power to fix new rates, “submission of this grievance to him would require him to exceed his powers.” However, as the Union points out in this court, the primary issue before the arbitrator will be whether the existing rates do apply to the “new” work. If they do not, it does not automatically follow that the arbitrator will try to fix new ones, and we, of course, express no opinion on that. For example, the arbitrator may hold that the men may properly refuse to do the work until the parties agree on a new rate. However, that would go only to the remedy if the arbitrator agrees with the Union in its basic argument that the contract rates do not apply to the new Rome-Utica run. The Company relies heavily on our decision in Torrington Co. v. Metal Products Workers, 362 F.2d 677 (2d Cir. 1966) (2-1). However, that ease is not controlling here. In Torrington, we were concerned with the court’s power to set aside an award when, according to the majority, the arbitrator had made clear that he did not rely on provisions of the contract. Indeed, in Torrington, we pointed out that the question of the arbitrator’s authority to make a particular award was best left to the arbitrator initially, so that the court could receive “the benefit of the arbitrator’s interpretative skills as to * * * his contractual authority.” 362 F.2d at 680 n. 6. Here, we are asked to prevent arbitration in the first place. To do so on the theory that we should not require a useless act misconceives the possibilities open to an arbitrator and ignores the explicit lesson of the Trilogy, quoted above, that “[t]he processing of even frivolous claims may have therapeutic values.” Judgment reversed for proceedings consistent with this opinion. . See, e. g., Schotts Bakery, Inc. v. Teamsters Local 949, 69-1 ARB ¶ 8118 (1968) (increase in duties of drivers); R & J Dick Co. v. Int’l Ass’n of Machinists, 65-2 ARB ¶ 8508 (1965). Such a grievanee may in fact be arbitrable even though the arbitrator is explicitly denied authority to make an award of increased wages, unlike the situation here. See United States Plywood Corp. v. Carpenters Local 1521, 68-1 ARB ¶ 8199 (1968). . See Space Services of Mississippi, Inc. v. Int’l Ass’n of Machinists, 69-1 ARB ¶ 8141 (1968) (envisioning negotiation by union and company as to wage classification of new job). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_casesource	158	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. MARYLAND v. CRAIG No. 89-478. Argued April 18, 1990 Decided June 27, 1990 O’ConnoR, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, and Kennedy, JJ., joined. Scalia, J., filed a dissenting opinion, in which BREnnan, Marshall, and Stevens, JJ., joined, post, p. 860. J. Joseph Curran, Jr., Attorney General of Maryland, argued the cause for petitioner. With him on the briefs were Gary E. Bair and Ann N. Bosse, Assistant Attorneys General, and William R. Hymes. William H. Murphy, Jr., argued the cause for respondent. With him on the brief were Maria Cristina Gutierrez, Gary S. Bernstein, Byron L. Warnken, and Clarke F. Ahlers. Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Richard E. Doran and Bradley R. Bischoff, Assistant Attorneys General, Don Siegelman, Attorney General of Alabama, Doug Baily, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, John J. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Warren Price III, Attorney General of Hawaii, Jim Jones, Attorney General of Idaho, Neil F. Har-tijón, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, James M. Shannon, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Lacy H. Thornburg, Attorney General of North Carolina, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Robert H. Henry, Attorney General of Oklahoma, Ernest D. Preate, Attorney General of Pennsylvania, Hector Rivera Cruz, Attorney General of Puerto Rico, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Jim Mattox, Attorney General of Texas, R. Paul Van Dam, Attorney General of Utah, Godfrey R. de Castro, Attorney General of the Virgin Islands, Mary Sue Terry, Attorney General of Virginia, Kenneth 0. Eikenberry, Attorney General of Washington, and Joseph B. Mayer, Attorney General of Wyoming; for the District Attorney of Kings County, New York, et al. by Charles J. Hynes, Peter A. Weinstein, Jay Cohen, Robert T. Johnson, Anthony Gírese, and Hoiv-ard R. Relin; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; for the National Association of Counsel for Children et al. by Jacqueline Y. Parker, Philip J. McCarthy, Jr., and Thomas R. Finn; for People Against Child Abuse by Judith D. Schret-ter, Wallace A. Christensen, and Paul A. Dorf; and for the Stephanie Roper Foundation by Gary B. Bom. Briefs of amici curiae urging affirmance were filed for the Illinois Public Defender Association et al. by David P. Bergschneider; for the National Association of Criminal Defense Lawyers by Maria Cristina Gutierrez and Annabelle Whiting Hall; and for Victims of Child Abuse Laws National Network (Vocal) by Alan Silber. Briefs of amici curiae were filed for the American Psychological Association by David W. Ogden; for the Appellate Committee of the California District Attorney’s Association by Jonathan B. Conklin; for the Institute for Psychological Therapies by Louis Kiefer; and for Richard A. Gardner by Alan Silber. Justice O’Connor delivered the opinion of the Court. This ease requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant’s physical presence, by one-way closed circuit television. HH In October 1986, a Howard County grand jury charged respondent, Sandra Ann Craig, with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim in each count was a 6-year-old girl who, from August 1984 to June 1986, had attended a kindergarten and prekindergarten center owned and operated by Craig. In March 1987, before the case went to trial, the State sought to invoke a Maryland statutory procedure that permits a judge to receive, by one-way closed circuit television, the testimony of a child witness who is alleged to be a victim of child abuse. To invoke the procedure, the trial judge must first “determin[e] that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” Md. Cts. & Jud. Proc. Code Ann. § 9-102(a)(l)(ii) (1989). Once the procedure is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The child witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness’ testimony to those in the courtroom. During this time the witness cannot see the defendant. The defendant remains in electronic communication with defense counsel, and objections may be made and ruled on as if the witness were testifying in the courtroom. In support of its motion invoking the one-way closed circuit television procedure, the State presented expert testimony that the named victim, as well as a number of other children who were alleged to have been sexually abused by Craig, would suffer “serious emotional distress such that [they could not] reasonably communicate,” § 9-102(a)(l)(ii), if required to testify in the courtroom. App. 7-59. The Maryland Court of Appeals characterized the evidence as follows: “The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig’s presence. For example, as to one child, the expert said that what ‘would cause him the most anxiety would be to testify in front of Mrs. Craig. . . .’ The child ‘wouldn’t be able to communicate effectively.’ As to another, an expert said she ‘would probably stop talking and she would withdraw and curl up.’ With respect to two others, the testimony was that one would ‘become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions’ while the other would ‘become extremely timid and unwilling to talk.’” 316 Md. 551, 568-569, 560 A. 2d 1120, 1128-1129 (1989). Craig objected to the use of the procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that although the statute “take[s] away the right of the defendant to be face to face with his or her accuser,” the defendant retains the “essence of the right of confrontation,” including the right to observe, cross-examine, and have the jury view the demeanor of the witness. App. 65-66. The trial court further found that, “based upon the evidence presented . . . the testimony of each of these children in a courtroom will result in each child suffering serious emotional distress . . . such that each of these children cannot reasonably communicate.” Id., at 66. The trial court then found the named victim and three other children competent to testify and accordingly permitted them to testify against Craig via the one-way closed circuit television procedure. The jury convicted Craig on all counts, and the Maryland Court of Special Appeals affirmed the convictions, 76 Md. App. 250, 544 A. 2d 784 (1988). The Court of Appeals of Maryland reversed and remanded for a new trial. 316 Md. 551, 560 A. 2d 1120 (1989). The Court of Appeals rejected Craig’s argument that the Confrontation Clause requires in all cases a face-to-face courtroom encounter between the accused and his accusers, id., at 556-562, 560 A. 2d at 1122-1125, but concluded: “[U]nder § 9 — 102(a)(l)(ii), the operative ‘serious emotional distress’ which renders a child victim unable to ‘reasonably communicate’ must be determined to arise, at least primarily, from face-to-face confrontation with the defendant. Thus, we construe the phrase ‘in the courtroom’ as meaning, for sixth amendment and [state constitution] confrontation purposes, ‘in the courtroom in the presence of the defendant.’ Unless prevention of ‘eyeball-to-eyeball’ confrontation is necessary to obtain the trial testimony of the child, the defendant cannot be denied that right.” Id., at 566, 560 A. 2d, at 1127. Reviewing the trial court’s finding and the evidence presented in support of the § 9-102 procedure, the Court of Appeals held that, “as [it] read Coy [v. Iowa, 487 U. S. 1012 (1988)], the showing made by the State was insufficient to reach the high threshold required by that case before § 9-102 may be invoked.” Id., at 554-555, 560 A. 2d, at 1121 (footnote omitted). We granted certiorari to resolve the important Confrontation Clause issues raised by this case. 493 U. S. 104 (1990). I — I I — I The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” We observed in Coy v. Iowa that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” 487 U. S., at 1016 (citing Kentucky v. Stincer, 482 U. S. 730, 748, 749-750 (1987) (Marshall, J., dissenting)); see also Pennsylvania v. Ritchie, 480 U. S. 39, 51 (1987) (plurality opinion); California v. Green, 399 U. S. 149, 157 (1970); Snyder v. Massachusetts, 291 U. S. 97, 106 (1934); Dowdell v. United States, 221 U. S. 325, 330 (1911); Kirby v. United States, 174 U. S. 47, 55 (1899); Mattox v. United States, 156 U. S. 237, 244 (1895). This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots. See Coy, supra, at 1015-1016; Mattox, supra, at 242 (Confrontation Clause intended to prevent conviction by affidavit); Green, supra, at 156 (same); cf. 3 J. Story, Commentaries on the Constitution § 1785, p. 662 (1833). We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Indeed, in Coy v. Iowa, we expressly “le[ft] for another day . . . the question whether any exceptions exist” to the “irreducible literal meaning of the Clause: ‘a right to meet face to face all those who appear and give evidence at trial.’” 487 U. S., at 1021 (quoting Green, supra, at 175 (Harlan, J., concurring)). The procedure challenged in Coy involved the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant as they testified against him at trial. See 487 U. S., at 1014-1015. In holding that the use of this procedure violated the defendant’s right to confront witnesses against him, we suggested that any exception to the right “would surely be allowed only when necessary to further an important public policy” — ! e., only upon a showing of something more than the generalized, “legislatively imposed presumption of trauma” underlying the statute at issue in that case. Id., at 1021; see also id., at 1025 (O’Connor, J., concurring). We concluded that “[s]ince there ha[d] been no individualized findings that these particular witnesses needed special protection, the judgment [in the case before us] could not be sustained by any conceivable exception.” Id., at 1021. Because the trial court in this case made individualized findings that each of the child witnesses needed special protection, this case requires us to decide the question reserved in Coy. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause: “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox, supra, at 242-243. As this description indicates, the right guaranteed by the Confrontation-Clause includes not only a “personal examination,” 156 U. S., at 242, but also “(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” Green, supra, at 158 (footnote omitted). The combined effect of these elements of confrontation— physical presence, oath, cross-examination, and observation of demeanor by the trier of fact — serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See Stincer, supra, at 739 (“[T]he right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial”); Dutton v. Evans, 400 U. S. 74, 89 (1970) (plurality opinion) (“[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]’”); Lee v. Illinois, 476 U. S. 530, 540 (1986) (confrontation guarantee serves “symbolic goals” and “promotes reliability”); see also Faretta v. California, 422 U. S. 806, 818 (1975) (Sixth Amendment “constitutionalizes the right in an adversary criminal trial to make a defense as we know it”); Strickland v. Washington, 466 U. S. 668, 684-685 (1984). We have recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person. See Coy, supra, at 1019-1020 (“It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ . . . That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult”); Ohio v. Roberts, 448 U. S. 56, 63, n. 6 (1980); see also 3 W. Blackstone, Commentaries 373-374. We have also noted the strong symbolic purpose served by requiring adverse witnesses at trial to testify in the accused’s presence. See Coy, 487 U. S., at 1017 (“[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution’ ”) (quoting Pointer v. Texas, 380 U. S. 400, 404 (1965)). Although face-to-face confrontation forms “the core of the values furthered by the Confrontation Clause,” Green, 399 U. S., at 157, we have nevertheless recognized that it is not the sine qua non of the confrontation right. See Delaware v. Fensterer, 474 U. S. 15, 22 (1985) (per curiam) (“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony”); Roberts, supra, at 69 (oath, cross-examination, and demeanor provide “all that the Sixth Amendment demands: ‘substantial compliance with the purposes behind the confrontation requirement’”) (quoting Green, supra, at 166); see also Stincer, 482 U. S., at 739-744 (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses, where defendant had opportunity for full and effective cross-examination at trial); Davis v. Alaska, 415 U. S. 308, 315-316 (1974); Douglas v. Alabama, 380 U. S. 415, 418 (1965); Pointer, supra, at 406-407; 5 J. Wigmore, Evidence § 1395, p. 150 (J. Chadbourn rev. 1974). For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant’s inability to confront the declarant at trial. See, e. g., Mattox, 156 U. S., at 243 (“[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations”); Pointer, supra, at 407 (noting exceptions to the confrontation right for dying declarations and “other analogous situations”). In Mattox, for example, we held that the testimony of a Government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial. See 156 U. S., at 240-244. We explained: “There is doubtless reason for saying that... if notes of [the witness’] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.” Id., at 243. We have accordingly stated that a literal reading of the Confrontation Clause would “abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.” Roberts, 448 U. S., at 63. Thus, in certain narrow circumstances, “competing interests, if ‘closely examined,’ may warrant dispensing with confrontation at trial.” Id., at 64 (quoting Chambers v. Mississippi, 410 U. S. 284, 295 (1973), and citing Mattox, supra). We have recently held, for example, that hearsay statements of nontestifying co-conspirators may be admitted against a defendant despite the lack of any face-to-face encounter with the accused. See Bourjaily v. United States, 483 U. S. 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. 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sc_casesource	025	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. MARKS et al. v. UNITED STATES No. 75-708. Argued November 1-2, 1976 Decided March 1, 1977 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Stewart and Marshall, JJ., joined, post, p. 197. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 198. Robert Eugene Smith argued the cause for petitioners. With him on the brief were Gilbert H. Deitch and Andrew Dennison. Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Thornburgh and Jerome M. Feit. Mr. Justice Powell delivered the opinion of the Court. This case presents the question, not fully answered in Hamling v. United States, 418 U. S. 87 (1974), whether the standards announced in Miller v. California, 413 U. S. 15 (1973), are to be applied retroactively to the potential detriment of a defendant in a criminal case. We granted certiorari, 424 U. S. 942 (1976), to resolve a conflict in the Circuits. I Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U. S. C. § 1465, and with conspiracy to transport such materials, 18 U. S. C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. Trial did not begin until the following October. In the interim, on June 21, 1973, this Court decided Miller v. California, supra, and its companion cases. Miller announced new standards for “isolat[ing] ‘hard core’ pornography from expression protected by the First Amendment.” 413 U. S., at 29. That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 129-130, and n. 7 (1973), decided the same day as Miller. See Hamling v. United States, supra, at 105, 113-114. Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). Memoirs, in their view, authoritatively stated the law in effect prior to Miller, by which petitioners charted their course of conduct. They focused in particular on the third part of the Memoirs test. Under it, expressive material is constitutionally protected unless it is “utterly without redeeming social value.” 383 U. S., at 418. Under Miller the comparable test is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. Miller, petitioners argue, casts a significantly wider net than Memoirs. To apply Miller retroactively, and thereby punish conduct innocent under Memoirs, violates the Due Process Clause of the Fifth Amendment—much as retroactive application of a new statute to penalize conduct innocent when performed would violate the Constitution’s ban on ex post facto laws, Art. I, § 9, cl. 3; § 10, cl. 1. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed. 520 F. 2d 913 (1975). We now reverse. II The Ex Post Facto Clause is a limitation upon the powers of the Legislature, see Calder v. Bull, 3 Dall. 386 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U. S. 309, 344 (1915). But the principle on which the Clause is based—the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties—is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. In Bouie v. City of Columbia, 378 U. S. 347 (1964), a case involving the cognate provision of the Fourteenth Amendment, the Court reversed trespass convictions, finding that they rested on an unexpected construction of the state trespass statute by the State Supreme Court: “[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id., at 353-354. Similarly, in Rabe v. Washington, 405 U. S. 313 (1972), we reversed a conviction under a state obscenity law because it rested on an unforeseeable judicial construction of the statute. We stressed that reversal was mandated because affected citizens lacked fair notice that the statute would be thus applied. Relying on Bouie, petitioners assert that Miller and its companion cases unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs. The Court of Appeals rejected this argument. It noted—correctly—that the Memoirs standards never commanded the assent of more than three Justices at any one time, and it apparently concluded from this fact that Memoirs never became the law. By this line of reasoning, one must judge whether Miller expanded criminal liability by looking not to Memoirs but to Roth v. United States, 354 U. S. 476 (1957), the last comparable plenary decision of this Court prior to Miller in which a majority united in a single opinion announcing the rationale behind the Court’s holding. Although certain language in Roth formed the basis for the plurality’s formulation in Memoirs, Roth’s test for distinguishing obscenity from protected speech was a fairly simple one to articulate: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S., at 489. If indeed Roth, not Memoirs, stated the applicable law prior to Miller, there would be much to commend the apparent view of the Court of Appeals that Miller did not significantly change the law. But we think the basic premise for this line of reasoning is faulty. When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .” Gregg v. Georgia, 428 U. S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Three Justices joined in the controlling opinion in Memoirs. Two others, Mr. Justice Black and Mr. Justice Douglas, concurred on broader grounds in reversing the judgment below. 383 U. S., at 421, 424. They reiterated their well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity. Mr. Justice Stewart also concurred in the judgment, based on his view that only “hardcore pornography” may be suppressed. Id., at 421. See Ginzburg v. United States, 383 U. S. 463, 499 (1966) (Stewart, J., dissenting). The view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards. Indeed, every Court of Appeals that considered the question between Memoirs and Miller so read our decisions. Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were “utterly without redeeming social value,” and otherwise satisfied the stringent Memoirs requirements. Memoirs therefore was the law. Miller did not simply clarify Roth; it marked a significant departure from Memoirs. And there can be little doubt that the third test announced in Miller—whether the work “lacks serious literary, artistic, political, or scientific value”—expanded criminal liability. The Court in Miller expressly observed that the “utterly without redeeming social value” test places on the prosecutor “a burden virtually impossible to discharge under our criminal standards of proof.” 413 U. S., at 22. Clearly it was thought that some conduct which would have gone unpunished under Memoirs would result in conviction under Miller. This case is not strictly analogous to Bouie. The statutory language there was “narrow and precise," 378 U. S., at 352, and that fact was important to our holding that the expansive construction adopted by the State Supreme Court deprived the accused of fair warning. In contrast, the statute involved here always has used sweeping language to describe that which is forbidden. But precisely because the statute is sweeping, its reach necessarily has been confined within the constitutional limits announced by this Court. Memoirs severely restricted its application. Miller also restricts its application beyond what the language might indicate, but Miller undeniably relaxes the Memoirs restrictions. The effect is the same as the new construction in Bouie. Petitioners, engaged in the dicey business of marketing films subject to possible challenge, had no fair warning that their products might be subjected to the new standards. We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values. See, e. g., Buckley v. Valeo, 424 U. S. 1, 40-41 (1976); Smith v. Goguen, 415 U. S. 566, 573 (1974). Section 1465 is such a statute. We therefore hold, in accordance with Bouie, that the Due Process Clause precludes the application to petitioners of the standards announced in Miller v. California, to the extent that those standards may impose criminal liability for conduct not punishable under Memoirs. Specifically, since the petitioners were indicted for conduct occurring prior to our decision in Miller, they are entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved are “utterly without redeeming social value.” At the same time we reaffirm our holding in Hamling v. United States, 418 U. S., at 102, that “any constitutional principle enunciated in Miller which would serve to benefit petitioners must be applied in their case.” Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Two Courts of Appeals have found instructions derived from Miller appropriate in prosecutions based on conduct occurring before the Miller decision came down: United States v. Marks, 520 F. 2d 913 (CA6 1975) (the instant case); and United States v. Friedman, 528 F. 2d 784 (CA10 1976), cert. pending, No. 75-1663. Three Courts of Appeals have reversed convictions where Miller instructions were given by the District Court: United States v. Wasserman, 504 F. 2d 1012 (CA5 1974); United States v. Jacobs, 513 F. 2d 564 (CA9 1974); United States v. Sherpix, Inc., 168 U. S. App. D. C. 121, 512 F. 2d 1361 (1975). In two earlier cases both conduct and trial occurred prior to Miller, and the jury instructions were derived from Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion). United States v. Thevis, 484 F. 2d 1149 (CA5 1973) (Thevis I), cert. denied, 418 U. S. 932 (1974); United States v. Palladino, 490 F. 2d 499 (CA1 1974). The Courts of Appeals there, foreshadowing to some extent our later decision in Hamling v. United States, held that Miller did not void all Memoirs-based convictions, but that on review appellants were entitled to all the benefits of both the Miller and Memoirs standards. See Hamling, 418 U. S., at 102. In later cases presenting similar facts, the Fifth Circuit has applied its holding in Thevis I. See, e. g., United States v. Linetsky, 533 F. 2d 192 (1976); United States v. Thevis, 526 F. 2d 989 (1976) (Thevis II), cert. denied, 429 U. S. 928 (1976). See also United States v. Hill, 500 F. 2d 733 (CA5 1974), cert. denied, 420 U. S. 952 (1975). And the Ninth Circuit, following Hamling, has reached the same result. United States v. Cutting, 538 F. 2d 835 (1976) (en banc), cert. denied, 429 U. S. 1052 (1977). Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973). Miller held: “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24. Under part (b) of the test, it is adequate if the statute, as written or as judicially construed, specifically defines the sexual conduct, depiction of which is forbidden. The Court in Miller offered examples of what a State might constitutionally choose to regulate: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. “(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 25. The plurality in Memoirs held that “three elements must coalesce” if material is to be found obscene and therefore outside the protection of the First Amendment: "[I]t must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” 383 U. S., at 418. Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts. Both in its brief and at oral argument in this Court the United States contended that petitioners’ convictions under the Miller standards were improper, and consequently the Government does not defend the judgment of the Court of Appeals on this issue but agrees with petitioners that their convictions should not stand. Shortly after Memoirs, in response to the divergence of opinion among Members of the Court, the Court began the practice of disposing of obscenity cases in brief per curiam decisions. Redrup v. New York, 386 U. S. 767 (1967), was the first. At least 31 cases were decided in this fashion. They are collected in Paris Adult Theatre I v. Slaton, 413 U. S., at 82-83, n. 8 (BRENNAN, J., dissenting). See, e. g., Books, Inc. v. United States, 358 F. 2d 935 (CA1 1966), rev’d per curiam, 388 U. S. 449 (1967); United States v. 35 Mm. Motion Picture Film, 432 F. 2d 705 (CA2 1970), cert. dismissed sub nom. United States v. Unicorn Enterprises, Inc., 403 U. S. 925 (1971); United States v. Ten Erotic Paintings, 432 F. 2d 420 (CA4 1970); United States v. Groner, 479 F. 2d 577 (CA5) (en banc) (the seven dissenting judges and one judge concurring in the result—constituting a majority on this issue—found that Memoirs stated the governing standard), vacated and remanded for further consideration in light of Miller, 414 U. S. 969 (1973); United States v. Pellegrino, 467 F. 2d 41 (CA9 1972); Southeastern Promotions, Ltd. v. Oklahoma City, 459 F. 2d 282 (CA10 1972); Huffman v. United States, 152 U. S. App. D. C 238, 470 F. 2d 386 (1971), conviction reversed on other grounds upon rehearing after Miller, 163 U. S. App. D. C. 417, 502 F. 2d 419 (1974). Cf. Grove Press, Inc. v. City of Philadelphia, 418 F. 2d 82 (CA3 1969); Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F. 2d 1297 (CA7 1973); Luros v. United States, 389 F. 2d 200 (CA8 1968). The statute provides in pertinent part: “Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1465. For this reason, the instant case is different from Rose v. Locke, 423 U. S. 48 (1975), where the broad reading of the statute at issue did not upset a previously established narrower construction. In Hamling we rejected a challenge based on Bouie v. City of Columbia, ostensibly similar to the challenge that is sustained here. 418 U. S., at 115-116. But the similarity is superficial only. There the petitioners focused on part (b) of the Miller test. See n. 3, supra. They argued that their convictions could not stand because Miller requires that the categories of material punishable under the statute must be specifically enumerated in the statute or in authoritative judicial construction. No such limiting construction had been announced at the time they engaged in the conduct that led to their convictions. We held that this made out no claim under Bouie, for part (b) did not expand the reach of the statute. “[T]he enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U. S. C. § 1461, conduct which had not previously been thought criminal.” 418 U. S., at 116. For the reasons noted in text, the same cannot be said of part (c) of the Miller test, shifting from “utterly without redeeming social value” to “lacks serious literary, artistic, political or scientific value.” This was implicitly recognized by the Court in Harding itself. There the trial took place before Miller, and the jury had been instructed in accordance with Memoirs. Its verdict necessarily meant that it found the materials to be utterly without redeeming social value. This Court examined the record and determined that the jury’s verdict “was supported by the evidence and consistent with the Memoirs formulation of obscenity.” 418 U. S., at 100. We did not avoid that inquiry on the ground that Memoirs had no relevance, as we might have done if Miller applied retroactively in all respects. The Court of Appeals stated, apparently without viewing the materials, 520 F. 2d, at 923 n. 1 (McCree, J., dissenting), that in its opinion the materials here were obscene under either Memoirs or Miller. 520 F. 2d, at 922. Such a conclusion, absent other dependable means of knowing the character of the materials, is of dubious value. But even if we accept the court’s conclusion, under these circumstances it is not 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. 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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:
songer_immunity	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" 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". FORREST CITY MACHINE WORKS, INC.; Mallard Farms Holding Co., Inc.; David A. Hodges, Appellants, v. UNITED STATES of America, Appellee. No. 91-1746. United States Court of Appeals, Eighth Circuit. Submitted Nov. 12, 1991. Decided Jan. 6, 1992. David A. Hodges, Little Rock, Ark., for appellants. Richard M. Pence, Little Rock, Ark., for appellee. Before BOWMAN and BEAM, Circuit Judges, and VAN SICKLE, District Judge. The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation. BOWMAN, Circuit Judge. Forrest City Machine Works, Mallard Farms, and David A. Hodges (“appellants”) appeal from the order of the District Court dismissing their complaint for lack of subject-matter jurisdiction. We affirm. In 1988, Twin City Bank of Arkansas brought a civil suit (“Twin City case”) to recover on the United States Commerce Department’s guaranty of a loan made by the bank to Forrest City Machine Works. Madeleine Austin, an attorney in the Commerce Department’s Office of the General Counsel, was assigned to work on the case on behalf of the Commerce Department. As the Commerce Department’s attorney, she filed the answer to Twin City’s complaint. Accompanying the answer was a counterclaim against the Bank and a third-party complaint against, inter alia, the appellants in this case. The third-party complaint alleged that the appellants had breached a contract and committed fraud. In 1990, the appellants filed a state court complaint against Austin, alleging that her filing of the third-party complaint constituted malicious prosecution and abuse of process. The appellants based this allegation in part on their assertion that the fraud count of the third-party complaint was dismissed after Austin left the employ of the Commerce Department. The United States moved to remove this case to federal court and moved that the United States be substituted as defendant, replacing Austin. This action was requested pursuant to 28 U.S.C. § 2679(d)(2) (1988), which states that “[u]pon certification ... that the defendant employee was acting within the scope of [her] employment at the time of the incident ... any civil action ... commenced ... in a State court shall be removed ... to the district court of the United States.... [T]he United States shall be substituted as the party defendant.” The United States provided such certification by way of a certificate filed by the United States Attorney for the Eastern District of Arkansas. The District Court accepted the certification, granted removal from the state court, and substituted the United States for Austin as the defendant. Shortly thereafter the United States filed a motion to dismiss the complaint for lack of subject-matter jurisdiction. On March 25, 1991, after determining that Austin was acting within the scope of her employment in filing the third-party complaint against the appellants in the Twin City case, the District Court entered an order of dismissal. The District Court held that the Federal Tort Claims Act (“FTCA”), as amended in 1988 by the Federal Employees Liability Reform and Tort Compensation Act (“Liability Reform Act”), precluded recovery on a malicious prosecution or abuse of process claim against either a federal employee acting within the scope of her employment or the United States. Although the appellants raise a number of issues on appeal, the dispositive issue is whether the District Court erred in determining that Austin was acting within the scope of her employment when she filed the third-party complaint in the Twin City case. If she was acting within the scope of her employment, then this complaint was rightly dismissed because of a lack of subject-matter jurisdiction. This is so because if Austin was acting within the scope of her employment, the United States must be substituted as the defendant. 28 U.S.C. § 2679(d)(2). But the United States is subject to suit only if it waives its sovereign immunity. The FTCA is such a waiver, but it is a limited one and it exempts from its waiver of sovereign immunity, inter alia, claims of malicious prosecution or abuse of process. 28 U.S.C. § 2680(h) (1988). Thus, the United States cannot be sued for claims of malicious prosecution or abuse of process. Similarly, a government employee acting within the scope of her employment cannot be sued on such claims. 28 U.S.C. § 2679(b)(1) (1988). “[Because the FTCA is an exclusive remedy for torts committed by federal employees acting within the scope of their employment, if recovery is not available against the United States under § 2680, it is not available at all.” Brown v. Armstrong, 949 F.2d 1007, 1013 (8th Cir.1991); see also Smith v. United States, — U.S. -, 111 S.Ct. 1180, 1184-85, 113 L.Ed.2d 134 (1991) (the Liability Reform Act “immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government”). Thus, the appellants’ claim is viable only if Austin was not acting within the scope of her employment when she filed the third-party action on behalf of the Commerce Department in the Twin City case. If she was not, then substitution of the United States as defendant was not proper, and Austin should be reinstated as the defendant. Section 2679(d)(2) states that when the United States certifies that the employee was acting within the scope of her employment, substitution shall occur. Section 2679(d)(2) states that this certification “shall conclusively establish scope of ... employment for purposes of removal,” but we have interpreted the section to require “at least limited judicial review of the ... scope-of-employment certification before substituting the United States as defendant.” Brown, 949 F.2d at 1011 (footnote omitted). Here the District Court undertook such a review before substituting the United States as a defendant. After discussing various exhibits introduced by the United States, the District Court stated that it “finds, after its independent review of the record, that Madeleine Austin was, in fact, acting within the scope of her federal employment when she filed the answer and third-party complaint_” Order of Dismissal at 7, reprinted in Appellants’ Addendum 1, 7. The appellants claim that their requests for discovery should have been allowed béfore such a review was made. “[W]e need not address in this case the potentially difficult issues of whether the certification is entitled to deference when the [appellants] come forward with contrary evidence and, if so, whether [appellants] must be permitted to probe the basis for the certification in discovery,” Brown, 949 F.2d 1007, 1012 n. 9, because here the appellants have not come forward with any evidence contradicting the government’s scope-of-employment certification and supporting exhibits. Further, the discovery requested by the appellants does not relate to the scope-of-employment question, but rather to the government’s basis for the third-party complaint in the Twin City case. Accordingly, the District Court did not err in dismissing this case without permitting the appellants to proceed with their discovery requests. We conclude that the District Court correctly determined that Austin was acting within the scope of her federal employment when in the Twin City case she filed the third-party complaint for the Commerce Department against the appellants. At the time the complaint was filed, Austin was a Commerce Department attorney assigned to work on the Twin City case. The third-party complaint accompanied the government’s answer and counter-claim in the Twin City case. In filing those pleadings Austin clearly was acting “for [her] employer’s benefit or [in furtherance of her] employer's interest.” Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989). The exhibits filed by the government fully support the scope-of-employment determination, and the appellants have offered nothing to call the District Court’s determination into doubt. “[T]he ... certification, although subject to judicial review, is prima facie evidence that the employee's challenged conduct was within the scope of employ. Therefore ... the [appellants] ... must come forward with specific facts rebutting the government’s scope-of-employment certification.” Brown, 949 F.2d 1007, 1012. The appellants have failed to carry their burden, and the District Court’s determination that the action by Austin of which the appellants complain was within the scope of her employment must be sustained. The order of the District Court is affirmed. . The Honorable G. Thomas Eisele, Senior United States District Judge for the Eastern District of Arkansas. . "The [United States] Attorneys are authorized to make the certification! ] provided for in ... 28 U.S.C. 2679(d) ... with respect to civil actions ... brought against Federal employees in their respective districts.” 28 CFR § 15.3(a) (1991). . We note that if substitution was proper, the District Court lacks subject-matter jurisdiction over this claim for an additional reason. 28 U.S.C. § 2675(a) (1988) states that an action against the United States “shall not be instituted ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency....” The appellants acknowledge that they did not submit the required administrative claim before filing this suit. Thus, the District Court lacks subject-matter jurisdiction over this claim for this reason. Sanders v. United States, 760 F.2d 869, 872 (8th Cir.1985). However, a dismissal on this ground might have the effect of simply prolonging the inevitable. If the appellants were allowed to submit such a claim, they eventually would return to this court in the same position as they are now, and again would have their claim dismissed for lack of subject-matter jurisdiction. In the interest of judicial economy, our affirmance of the dismissal due to a lack of subject-matter jurisdiction is based not upon this procedural defect but upon the immunity accorded Austin and the United States by the FTCA and the Liability Reform Act. . As there is no factual dispute, we treat this issue as a question of law and review the District Court's determination de novo. See Arbour v. Jenkins, 903 F.2d 416, 422 (6th Cir.1990); Washington v. United States, 868 F.2d 332, 334 (9th Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989); Nietert v. Overby, 816 F.2d 1464, 1466 (10th Cir.1987); Hoston v. Silbert, 681 F.2d 876, 879 (D.C.Cir.1982) (per curiam); cf. S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990) (issue is mixed question of law and fact), modified, 924 F.2d 1555 (11th Cir.) (per curiam), cert. denied, — U.S. -, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991); Cronin v. Hertz Corp., 818 F.2d 1064, 1069 (2nd Cir.1987) (issue is mixed question of law and fact). . The issue of scope of employment is controlled by the "applicable state law of responde-at superior." Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989) (noting applicable Arkansas respondeat superior law). The appellants do not contend that the District Court failed to apply or misconstrued the governing state law. Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_counsel2	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. 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 Roy P. BRIEHLER, Plaintiff-Appellant, v. CITY OF MIAMI, a Fla. Municipal Corp., Xavier Suarez, individually & as Mayor for the City of Miami, Cesar H. Odio, individually & as Mgr. for the City of Miami, Rouse-Miami, Inc., a Maryland Corp., Bayside Center Limited Partnership, a ltd. partnership, Maryland, with sole general partner being: Rouse-Miami, Inc., Armando Codina, Natan Rok, Ignacio Garcia, Garth Reeves, & Ron Frazier, James Rouse, James Dausch, Mathias J. Devito, Joule Yacht Transport Inc., Richard Joule, and William Joule, Defendants-Appellees. No. 90-5708. United States Court of Appeals, Eleventh Circuit. Feb. 20, 1991. Roy Briehler, Trenton, N.J., for plaintiff - appellant. Marlene K. Silverman, Alan H. Rolnick, Miami, Fla., for defendants-appellees. Before FAY, KRAVITCH and BIRCH, Circuit Judges. BY THE COURT: Roy P. Briehler filed a complaint alleging various counts against a number of defendants, including Rouse-Miami, Inc. and Bayside Center Limited Partnership (collectively the “Bayside Appellees”). On July 24, 1990, the district court dismissed counts II, III, IV, and V with prejudice. The court dismissed the two remaining counts (counts I and VI) with leave to amend, but did not specify a time by which Briehler was to amend. On August 22, 1990, Briehler filed a notice of appeal to this court stating: Notice is hereby given that plaintiff ROY P. BRIEHLER hereby appeals to the United States Court of Appeals for the Eleventh Circuit from the Order Granting Motion to Dismiss Counts 2, 3, 4, and 5 of plaintiffs complaint with prejudice, entered in this action on the 24th. [sic] day of July, 1990. After an initial review of the record, this court, sua sponte, asked the parties to address the issue of whether or not the district court’s order is final and appeal-able. We hold that it is. An order dismissing a complaint is not final and appealable unless the order holds that it dismisses the entire action or that the complaint could not be saved by amendment. Czeremcha v. International Ass’n of Machinists and Aerospace Workers, AFL-CIO, 724 F.2d 1552, 1554-55 (11th Cir.1984). In Schuurman v. Motor Vessel “Betty K V”, 798 F.2d 442, 445 (11th Cir.1986), however, this court held that where an order dismisses a complaint with leave to amend within a specified period, the order becomes final (and therefore appealable) when the time period allowed for amendment expires. This case falls between these two rules because the district court gave leave to amend on two counts, but did not specify a time limit. In Czeremcha, the plaintiff filed a complaint basing subject matter jurisdiction on the National Labor Relations Act (“NLRA”). On December 23, 1982, the district court dismissed the complaint for lack of subject matter jurisdiction, stating that jurisdiction was properly based on the Railway Labor Act (“RLA”), not the NLRA. On January 4, 1983, pursuant to Rule 15 of the Federal Rules of Civil Procedure, the plaintiff moved for leave to amend the complaint to allege jurisdiction under the RLA. The district court denied the motion on March 10, 1983. On April 8, 1983, the plaintiff filed a notice of appeal. The defendant argued that the plaintiff’s April 8, 1983 notice of appeal was not timely because it was not made within thirty days of the dismissal of the complaint. See Fed.R.App.P. 4(a). In rejecting that argument, this court held that a dismissal of a complaint is not final and appealable “unless the court holds either that no amendment is possible or that the dismissal of the complaint also constitutes dismissal of the action.” Czeremcha, 724 F.2d at 1554. Therefore, the order was not final until the plaintiff’s motion for leave to amend was denied. In Czeremcha, however, the court noted that the predecessor to this court “has indicated that a plaintiff has the choice either of pursuing a permissive right to amend a complaint after dismissal or of treating the order as final and filing for appeal.” Id. (citing United States v. Mayton, 335 F.2d 153, 158 n. 12 (5th Cir.1964); United Steelworkers v. American Int’l Aluminum Corp., 334 F.2d 147, 150 n. 4 (5th Cir.1964)). We conclude that this choice was available to Briehler in this case. Although the district court gave Briehler leave to amend his complaint, the court in no way required amendment. Thus, if Briehler chose not to amend, there was nothing left for the district court to do and the court’s order of dismissal became final when Briehler filed his notice of appeal. The Bayside Appellees argue, however, that even under the rule enunciated above, the order is not final because Briehler’s notice of appeal states only that Briehler appeals from the district court’s “Order Granting Motion to Dismiss Counts 2, 3, 4, and 5 of plaintiff's complaint with prejudice,” and does not state that he is appealing the dismissal with leave to amend of counts I and VI. Although Briehler’s notice of appeal is not precise as to its scope, in answer to this court’s jurisdictional question Briehler made clear that he did not intend to amend his complaint. Thus, Briehler obviously has chosen to appeal rather than exercise his right to amend. Our result in this case is consistent with our holding in Schuurman. In Schuur-man, we held that an order dismissing a complaint with a specified time for amendment became final at the time the amendment period expired. We further noted that a plaintiff need not wait until the time expires, but can treat the dismissal as final and file a notice of appeal before the expiration of the amendment period. In so doing, however, the plaintiff waives the right to later amend. Schuurman, 798 F.2d at 445; see also Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 960-61 (2d Cir.1987) (appellant’s unequivocal statement at oral argument that no further amendments would be made was sufficient to cure nonfinal nature of dismissal with leave to amend). We believe our holding in this case is fair to both parties. The rule recognizes that a dismissal with leave to amend is not final and appealable, and therefore a plaintiff who attempts to amend would not later be time-barred from appealing. See Czerem-cha, 724 F.2d at 1554-55. On the other hand, where a plaintiff chooses to waive the right to amend, there is nothing left for the district court to do and the order therefore becomes final. The rule is also fair to defendants. If a defendant fears that a plaintiff will unduly prolong litigation by filing amended complaints far into the future, the defendant can move that the district court enter final judgment. In accordance with the above reasoning, we hold that the district court’s order is final and appealable and that Briehler has waived his right to amend any portions of his complaint. This court has jurisdiction and the appeal may proceed. IT IS SO ORDERED. . Although Briehler’s complaint listed many defendants, only the Bayside Appellees were properly served. The time has expired for Briehler to serve any additional parties, and therefore the Bayside Appellees are the only defendants in the case. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit issued before October 1, 1981. 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	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. UNITED STATES of America, Plaintiff-Appellee, v. Donald E. DISTLER, Defendant-Appellant. No. 79-5339. United States Court of Appeals, Sixth Circuit. Argued Oct. 10, 1980. Decided Feb. 12, 1981. Rehearing Denied March 31, 1981. Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant. John L. Smith, U. S. Atty., Michael R. Tilley, Asst. U. S. Atty., Louisville, Ky., Raymond W. Mushal, Pollution Control Section, Dept, of Justice, Washington, D. C., James R. Williams, and David Everett, U. S. Dept, of Justice, Cleveland, Ohio, for plaintiff-appellee. Before EDWARDS, Chief Circuit Judge, and BROWN and KENNEDY, Circuit Judges. BAILEY BROWN, Circuit Judge. Appellant, Donald E. Distler, was convicted after a jury trial in the Western District of Kentucky of two violations of the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.). Criminal penalties are imposed by 33 U.S.C. § 1319, which provides in part: (c)(1) Any person who willfully or negligently violates section 1311, 1312, 1316, 1317, or 1318 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator or by a State or in a permit issued under section 1344 of this title by a State, shall be punished by a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than one year, or by both.... " 33 U.S.C. § 1319 (1977). In this appeal appellant presents several issues for review including challenges to certain evidentiary rulings made at trial, a challenge to the constitutionality of Fed.R.Evid. 801(d)(1), and a contention that the evidence offered at trial was insufficient to sustain a verdict of guilt. For the reasons expressed below, we affirm appellant’s conviction in all respects. I. The pollutants involved in this case are hexachlorocyclopentadiene (hexa), octachlorocyclopentene (octa), and hexachlorobenzene (HCB). Appellant was convicted of discharging a mixture of these pollutants, called PCL bottoms, into the Ohio River, by way of the sewers of the Louisville and Jefferson County Metropolitan Sewer District (MSD). PCL Bottoms Hexa, a chlorinated hydrocarbon, is an intermediary product used in the production of other chemical compounds, including pesticides and flame retardant resins. Commercial hexa is produced in batches, which have as a byproduct waste chemicals called PCL bottoms. PCL bottoms are comprised of a combination of approximately 10-15% hexa, 30% octa, 5% HCB, and a variety of miscellaneous polymers. During the time period relevant to the indictment, the Velsicol Chemical Corporation (Velsicol) plant in Memphis was the only manufacturer in the United States of hexa, and therefore the only source of PCL bottoms, the chemical wastes associated with its production. PCL bottoms do not mix with water and are heavier than water. If they are placed in water, a very small amount rises to the surface, while the great bulk of the material remains at the bottom. The portion exposed to the air volatilizes, emitting a distinctive odor, and in some instances, a haze. If volatilized, PCL bottoms cause eye and skin disorders similar to those caused by tear gas. Because of the propensity of PCL bottoms to solidify at normal temperatures, these waste chemicals were kept in suspension for transportation by mixing them with a Number 4 grade fuel oil. The Number 4 grade oil, not normally refined directly, was produced by mixing a metered quantity of light cycle Number 2 grade oil, similar to kerosene, with an estimated quantity of heavier Number 6 grade oil. Because no two estimates of the quantity of Number 6 grade oil needed to complete the mixture were the same, each tankerload of PCL bottoms contained a unique blend of oils. Closedown of the Morris Forman Wastewater Treatment Plant Beginning in mid-March, 1977, employees of MSD’s Morris Forman Wastewater Treatment Plant (Morris Forman Plant) began complaining of a variety of physical ailments caused by particularly noxious fumes and odors. These complaints came predominantly from employees working in the Screen and Grit Building. This building contains four rectangular tanks, known as grit chambers, which are equipped with a series of screens that strain sewage as it enters the plant. During the week of March 21,1977, maintenance crews complained of chemical fumes that burned their eyes, noses, throats, and skin. On March 25, a crew directed to clean grit chamber three removed the water from the chamber, and the fume problem became worse. Attached to the walls of the chamber was a very thick, viscid, brownish residue. Noxious fumes frustrated efforts to clean the chamber with water and steam. After the plant manager was notified of the problems in the grit chamber on March 27, 1977, a sample of the residue was taken from the chamber and sent to the Environmental Protection Agency (EPA) lab in Athens, Georgia. Tests performed there revealed the presence of hexa and octa. Velsicol’s Memphis plant manager came to Louisville on March 29, 1977, and confirmed that the material in the grit chamber was “hex bottom.” A sample of this substance, sample # 1110 (MFP), was later introduced in appellant’s trial. Because of the toxicity of PCL bottoms, the plant was essentially abandoned in late March, and virtually all the sewage normally entering it passed untreated into the Ohio River. Between March 29, 1977 and June 8,1977, approximately 100 million gallons of untreated sewage passed into the Ohio River daily. The only firm receiving PCL bottoms after mid-1976 that had any direct relationship to the Louisville area was the Chem-Dyne Corporation of Hamilton, Ohio (Chem-Dyne), near Cincinnati, which was under contract to Velsicol to transport its PCL bottoms to Canada for disposal. Review of available shipment records revealed that Chem-Dyne delivered PCL bottoms to Kentucky Liquid Recycling, Inc. Kentucky Liquid Recycling, Inc. Kentucky Liquid Recylcing, Inc. (KLR), a liquid waste disposal company, was incorporated in Kentucky on August 17, 1976. Appellant was the sole shareholder and sole member of the board of directors. Appellant was also the registered agent for service of process, and the principal office of KLR was appellant’s home. In late August, 1976, appellant contacted the Kentucky Department of Natural Resources to determine what permits were required in order to operate a liquid waste disposal company. In Louisville, on September 16, 1976, appellant leased portions of a Rowan Street warehouse, and in early March, 1977 he leased a brickyard. During this time, appellant also began operating a former Amoco tank farm, located in nearby New Albany, Indiana. KLR generated operating funds by accepting and hauling waste materials and by the sale of some of the drums and their contents. From December, 1976, through April, 1977, Chem-Dyne was the exclusive transporter of Velsicol PCL bottoms. In late 1976 or early 1977, Chem-Dyne personnel came to Louisville to discuss the disposal of PCL bottoms with appellant. KLR’s incinerator designer was informed of various aspects of PCL bottoms incineration, and he was questioned about the ability of the proposed KLR incinerator to adequately accomplish the task. Appellant was provided with a description of the various chemicals included in the Velsicol waste product and was given material data safety sheet that described the toxic properties of those chemicals. In February, 1977, it was agreed that KLR would store the PCL bottoms in tanks until the incinerator was operational and the required permits were obtained. If KLR did not obtain the required permits within six months, or if Chem-Dyne’s customer, Velsicol, did not approve of KLR, then Chem-Dyne would remove the material. Shipment of PCL Bottoms from Velsicol to KLR To stabilize the PCL bottoms for shipment, Chem-Dyne drivers would pick up a PCL bottoms tanker, proceed to the Delta Oil Refinery in Memphis, and take on a load of Number 4 grade oil. The full tankers would then be delivered to KLR in Louisville. At some later time, the Chem-Dyne drivers would pick up the empty tankers, either at the New Albany site, or at a Holiday Inn on Dixie Highway, near Louisville. Chem-Dyne tankers were shiny metallic or stainless steel in color or finish and were shaped either as straight tubes or with a V-shaped drop in the middle. These were easily distinguishable from appellant’s tractor tanker, which consisted of a blue Auto-car truck tractor and an orange-red, straight tube tanker. Location of the Source of the Contaminant Between approximately March 29 and April 4, 1977, officials attempted to ascertain the location at which the toxic contaminant was introduced into the MSD sewer system, utilizing a trace procedure that combined sniff searching and actual sampling. Officials collected samples from the major trunk lines feeding into the Morris Forman Plant in their attempt to identify the contaminated lines. They concluded that the principal point of introduction of the contaminant into the sewer was within two or three blocks of the 28th Street and Broadway intersection in Louisville. Investigation of KLR In early April, KLR was investigated in the attempt to discover how the PCL bottoms could have entered the sewer system. On April 4, 1977, personnel from the EPA and other administrative agencies visited those properties known to be owned or controlled by KLR. Random sampling of these sites revealed some drums with significant concentration values of hexa. Investigation of appellant’s Rowan Street warehouse revealed about 5,000 stacked drums, some of which bore Chem-Dyne markings. At the KLR site in New Albany, EPA personnel took samples from each of the ten tanks. Sample # 1257 (KLR 1), was taken from Tank # 6, and was later introduced in evidence at appellant’s trial. After the FBI entered the case, search warrants were obtained for all the sites inspected by the EPA as well as for the Hardin County brickyard leased by appellant and the farm site on the Dixie Highway owned by appellant’s father. These warrants were executed between April 15 and 17, 1977. The searches revealed large quantities of chemicals on each site, including hexa, octa, and HCB in degrees of concentration ranging from “trace amounts” to “significant concentrations.” On April 15, 1977, sample # 1785 (KLR 2) was taken from Tank # 6 at the New Albany site, and was later introduced in evidence during appellant’s trial. Lewis Avenue Investigation On April 17, 1977, the EPA and the FBI received information that a demolition site contiguous to the intersection of 28th Street and Broadway might be the place where the toxic contaminants were dumped into the sewer. The demolition site was surrounded by fence, with access to the area available only through a gate adjacent to an oil storage tank area. Upon arriving at the site, investigators were shown three manholes on Lewis Avenue. Samples were taken from manholes 3, 4, and 5. The samples from manhole 5 showed no trace of hexa or octa. The samples from manhole 4 showed the presence of some hexa and octa, and the samples taken from manhole 3 were “hot.” One of the samples from manhole 3, sample # 1872 (Lewis), was later introduced in evidence during appellant’s trial. II. Appellant makes two challenges to the admission of grand jury testimony at his trial. First, appellant argues that some of the grand jury testimony was not “inconsistent” with the trial testimony, and was thus erroneously submitted to the jury as substantive evidence of guilt under Fed.R. Evid. 801(d)(1)(A). Rule 801(d)(1) provides: (d) A statement is not hearsay if— (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him; . . . Second, appellant argues that allowing any grand jury testimony to be considered as substantive evidence of guilt violates his Sixth Amendment right to an “open trial” and violates his due process right not to be convicted on the basis of unreliable evidence. The eyewitnesses who testified at appellant’s trial were predominantly associated with Highway Wrecking Co., which was carrying on the demolition at the site that we have referred to. This concern was operated by Frank Hornung, who happened to be a close friend of appellant. The eyewitnesses, who testified at appellant’s trial in late 1978, had also testified before the grand jury in mid-1977. During the one and one-half year hiatus between the grand jury proceedings and appellant’s trial many of the witnesses forgot portions of their grand jury testimony or remembered it with less certainty of detail. Accordingly, much of the grand jury testimony was introduced in evidence at appellant’s trial and was considered by the jury as substantive evidence of guilt in accordance with Fed.R. Evid. 801(d)(1). With regard to appellant’s assertion that some of the grand jury testimony was erroneously admitted under Rule 801(d)(1)(A) because it was not inconsistent with in-court testimony, our review of the record convinces us that the trial court did not abuse its discretion when it admitted the challenged grand jury testimony. We think it clear that, for purposes of this rule, partial or vague recollection is inconsistent with total or definite recollection. Thus, when a witness remembers events incompletely, or with some equivocation at trial, it is not improper to admit a prior statement that otherwise complies with the limitations of Rule 801(d)(1), if that prior statement indicates that at an earlier time the witness remembered the events about which he testifies with more certainty or in more detail. In such a case, it may well be that some of the prior testimony corroborates the in-court testimony. The admission of this evidence, however, is not error if, as is the case here, the prior statements are predominantly inconsistent with the in-court statements, and the corroborative portions are needed to set the whole in context. Determinations such as these are properly left to the discretion of the trial court, and that discretion was not abused here. In addition, we note that much of the grand jury testimony introduced at trial involved prior statements concerning identification, and was properly admissible under subsection (C) of Rule 801(d)(1), which contains no inconsistency requirement. With regard to the consideration of appellant’s constitutional challenge to the admission of grand jury testimony as substantive evidence of guilt, a review of the legislative history that preceded the adoption of Rule 801(d)(1)(A) is helpful. The Rule as originally submitted to Congress by the Supreme Court, as the House of Representatives noted in its Report, would have allowed any prior inconsistent statement to be considered as substantive evidence of guilt by the trier of fact, “an approach followed by a small but growing number of jurisdictions and recently held constitutional in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).” H.R. No. 93-650, 93rd Cong., 2nd Sess., Note to Rule 801(d)(1), reprinted in [1974] 4 U.S. Code Cong. & Ad. News, 7051, 7086. The House amended the Rule, limiting the admissibility of prior inconsistent statements under the Rule to “those made while the declarant was subject to cross-examination at a trial or hearing or in a deposition.” Id. at 7087. The Senate rejected the House amendment as too restrictive, opining that since the Rule is operative only if the declarant testifies at trial, at which time he may be cross-examined, the requirement of cross-examination at the time the original statement is made is unnecessary. The Senate emphasized the benefits of the rule allowing the jury to consider testimony given “nearer in time to the events, when memory was fresher and intervening influence had not been brought into play.” S.Rep.No. 93-1277, 93rd Cong., 2nd Sess., Note on Rule 801(d)(1)(A), reprinted in [1974] 4 U.S. Code Cong. & Ad. News 7062-63. The version of Rule 801(d)(1)(A) that was eventually adopted resulted from the efforts of a joint House and Senate committee. In its report, the joint committee stated that “[t]he rule as adopted covers statements before a grand jury.” Conference Report No. 93-1597, 93rd Cong., 2nd Sess., Note on Rule 801(d)(1)(A), reprinted in [1974] 4 U.S. Code Cong. & Ad. News 7104. The opinion referred to in the House Report, California v. Green, 399 U.S. 140, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), is also instructive at this point. In Green, the Supreme Court held that the admission, as substantive evidence of guilt, of prior inconsistent statements is not violative of the Confrontation Clause as long as the declarant testifies, and is subject to cross-examination, at trial. The Court identified three protections furthered by the confrontation requirement: to insure that the witness testifies under oath; to allow cross-examination of the witness; and, to provide the jury with the opportunity to observe the demeanor of the witness as he testifies. Id. at 158, 90 S.Ct. at 1934. Although it noted that these protections may be absent with regard to an out-of-court statement, the Court stated that “if the declarant testifies at trial, the out-of-court statement for all practical purposes regains most of the lost protections.” Id. Because of this, the Court noted that there is “little reason to distinguish among prior inconsistent statements on the basis of the circumstances under which the prior statements were given.” Id. at 168, 90 S.Ct. at 1940. We think it clear that the admission, as substantive evidence, of grand jury testimony that meets the requirements of Rule 801(d)(1)(A) does not run afoul of the Constitution. The Rule was expressly formulated to allow admission of grand jury testimony, and this court and others have held that grand jury testimony admitted under the Rule may properly be considered as substantive evidence of guilt. See e.g., United States v. Woods, 613 F.2d 629, 637 (6th Cir.), cert. denied, 449 U.S. 877, 101 S.Ct. 222, 66 L.Ed.2d 99 (1980); United States v. Mosley, 555 F.2d 191, 193 (8th Cir. 1977), cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1978); United States v. Castro-Ayon, 537 F.2d 1055, 1057 (9th Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 501, 50 L.Ed.2d 594 (1976). The Court in Green, supra, indicated that, as long as the declarant testifies at trial, the circumstances surrounding the rendering of the initial statement are of little import. Indeed, the Rule as submitted by the Court contained no restrictions on the character of prior inconsistent statements that would have been admissible. The Rule in its present form contains more protections than the version submitted by the Court, and contains more restrictions than the language of Green, supra, would seem to indicate is necessary. In any event, the protections furthered by the confrontation requirement, as enunciated by the Court in Green, supra, are adequately served by Rule 801(d)(1)(A). The declarant must testify at trial; he must be subject to cross-examination concerning the statement; and, the statement must have been given under oath. Thus, we find no merit to appellant’s constitutional challenge to the validity of Rule 801(d)(1)(A). III. Appellant also contends on this appeal that expert testimony indicating that samples taken from the KLR site, the Lewis Avenue manhole, and the MFP grit chamber came from the same source was improperly admitted. In support of this contention, appellant argues that this expert testimony fails to satisfy the standard adopted by this court in United States v. Brown, 557 F.2d 541 (6th Cir. 1977). In Brown, this court stated: Four factors must appear in the record to uphold the admission of expert testimony: 1. qualified expert; 2. proper subject; 3. conformity to a generally accepted explanatory theory; and 4. probative value compared to prejudicial effect. Id. at 556. Specifically, appellant argues that the expert testimony introduced with regard to oil matching has not gained general acceptance in its scientific field. Oil spill identification, or oil matching, may be accomplished utilizing various test procedures, some of which are discussed below. Experts in oil matching refer to a four-category system when they express their results: match; possible match; indeterminate; and, non-match. It is important to note at this juncture that the expert testimony in this case regarding comparisons of various samples refers to the matching of the oil that was mixed with the PCL bottoms for transportation and not to a matching per se of the PCL bottoms themselves. The matching of oil samples is made possible because of the unique characteristics of crude oil. Oil is formed when biological matter is trapped underground and is subjected to heat and pressure for a period of time. In each underground pocket, different ratios of plant and animal matter are present, and the oil eventually produced from this combination is unique. This uniqueness enables experts to distinguish oil samples, even as between two samples taken from adjacent pockets within the same geological formation. The refined oil retains its unique character. The methodology of oil matching involves the isolation of the molecular compounds associated with oil, particularly hydrocarbons and sulphur compounds. Instrumental in this process is the gas chromatograph, which is essentially an extremely sensitive filtering machine. The particular sample to be tested is mixed with a liquid solvent. The mixture is heated until it forms a gas. The gas is then forced through a column, which is a glass tube filled with special filtration material. Each molecular compound will elute through a given column and temperature at the same rate. At the outgoing end of the column a detector is attached, which records the quantity and concentration of each particular molecular compound contained in the sample. The data thus accumulated are converted into electrical impulses, which are recorded in graph fashion, called chromatograms. Comparison of the graphs reveals whether the tested samples match. EPA chemist Frank Allen tested the two KLR samples, the Lewis sample, and the MFP sample using the gas chromatograph in conjunction with two different types of detectors, one specific for hydrocarbons (FID) and one specific for sulphur compounds (FPD). Allen concluded on the basis of independent analyses of FID data and FPD data that the four samples came from the same source. Dr. Alan Bentz, a research chemist with extensive expertise in the area of oil matching, found, on the basis of FID data, that the four samples came from the same source. At trial he interpreted the FPD chromatograms of the MFP samples and the KLR 1 sample, concluding that this data indicated that the two samples matched. In Dr. Bentz’ opinion, the oil samples matched, and the presence of hexa and octa in the samples removed virtually all doubt concerning the common origin of the samples. An expert in the area of mass spectroscopic analysis, a process that analyzes ions formed by bombarding the molecules that elute from the gas chromatograph, also testified that the KLR 1 and MFP samples matched. In addition, experts in the field of organic analysis, which uses the gas chromatograph and various detectors to identify specific compounds, testified that all four samples matched. In support of his challenge to the introduction in evidence of this expert testimony, appellant relies on this court’s reasoning in Brown, supra. At issue in Brown was whether the process of ion microprobic analysis was generally accepted in its field as a viable method for comparing human hair samples. The court held that although ion microprobic analysis had obtained a sufficient degree of acceptance in the field of mass spectrometry, the use of this technique in analyzing hair samples was still in the experimental stage. In its discussion of the basis for the expert testimony introduced in Brown, the court noted that no reported cases were found in which testimony based upon microprobic analysis of hair had been admitted, and that the parties had cited no case of any kind in which evidence based upon microprobic analysis had been admitted. The court also noted that the experts who testified in Brown admitted that their test results had not been duplicated elsewhere and that they were unable to point to any authority in their field to support their position. Nor was there any published authority to support these experts’ opinions concerning the reliability of the tests they performed. The court further noted that in addition to the absence of specific indicia of reliability, there were no absolute standards by which the accuracy of their measurements could be gauged. 557 F.2d at 557-58. Thus, the court concluded: While it is a truism that every useful new development must have its first day in court, expert testimony on a critical fact relating to guilt or innocence is not admissible unless the principle upon which it is based has attained general acceptance in the scientific community and is not mere speculation or conjecture. We are not convinced, on the present state of the record, that ion microprobic analysis of human hair has yet reached the level of general acceptance in its field, or that the experiments conducted in this case have been shown to be sufficiently reliable and accurate, to provide an acceptable basis for expert identification in a criminal trial. Id. at 558-59. Reasoning from Brown, appellant contends that although the oil matching techniques testified about at trial are not new, the use of these techniques to analyze sewer samples has not reached the level of general acceptance that establishes an acceptable basis for the introduction of expert testimony in a criminal trial. In United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1232, 28 L.Ed.2d 531 (1971), this court utilized the oft-quoted standard of general acceptance enunciated in Frye v. United States, 293 F. 1013 (D.C.App.1923). Quoting from Frye at 1014, this court stated: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to determine. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 433 F.2d at 438. In United States v. Franks, 511 F.2d 25 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975), this court added that “we deem general acceptance as being nearly synonomous with reliability. If a scientific process is reliable, or sufficiently accurate, courts may also deem it ‘generally accepted.’ ” Id. at 33, n. 12. We feel it best to discuss the question of whether the oil matching procedures involved in this case are generally accepted in their scientific field in terms of two separate inquiries. First, are the methods utilized in the instant case generally accepted as reliable in the oil matching field in general? Second, if the first question is answered affirmatively, are these methods properly transferable to an analysis of the sewer samples tested in the instant case? With regard to the first inquiry mentioned above, the court concludes from the record that the methods employed by the experts who testified in the instant case, namely gas chromatograph analysis performed in conjunction with the various detectors, is a generally accepted method of matching oil samples. These methods were shown to be highly reliable, and they have received a significant degree of national and international recognition. Dr. Bentz testified that tests performed on the FID found it to be reliable in excess of 90%. Similar tests performed on the FPD found it also to be reliable in excess of 90%. Because the results obtained from each detector are independently reliable, when the results of both detectors agree, they are reliable in excess of 99%. Dr. Bentz testified that this high degree of reliability is enhanced when samples containing oil from the same source also contain the same non-petroleum components. At least two other courts have found that gas chromatograph/FID/FPD analysis is a highly reliable method of oil fingerprinting. In United States v. Slade, 447 F.Supp. 638 (E.D.Tex.1978), the court found that results of oil matching tests conducted with the gas chromatograph and FID and FPD detectors yield oil spill identification results that are reliable “in the neighborhood of 99.7%.” Id. at 644. The Southern District of Texas reached a similar conclusion in an unreported case. See id., n.6. See also discussion in Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 456 F.Supp. 1327,1342-43 (D.P.R.1978), aff’d, 602 F.2d 12 (1st Cir. 1979). Further, a standard method of gas chromatograph/FID/FPD analysis has been promulgated by the American Society for Testing and Materials (ASTM). Dr. Bentz testified that the procedures utilized by the experts who testified at appellant’s trial did not deviate significantly from the ASTM standard procedure. In addition, domestic and foreign oil concerns have shown confidence in this oil identification procedure. Having determined that gas chromatograph/FID/FPD analysis is generally accepted in the field of oil matching or oil fingerprinting, we now turn to a consideration of whether this mode of scientific analysis is properly transferable to the samples taken in the instant case. We hold that it is. Appellant argues that gas chromatograph/FID/FPD analysis is not a generally accepted method of analyzing sewer samples. This argument is wide of the mark, however, because, as the experts in this case testified, the oil with which the PCL bottoms was mixed is the substance that was analyzed. We see no significant difference, and appellant has presented none, between analyzing oil samples taken from the sewer and analyzing oil samples taken from some other source. Non-petroleum elements, whether they be in the sewer or elsewhere in the environment, are irrelevant to the comparison of oil samples. In some cases, the non-petroleum elements in the samples enhance the reliability of the conclusion that two samples match, but nothing in the record indicates that the non-petroleum elements detract in any way from the reliability of the analysis of the oil samples. Thus, we hold that the expert testimony introduced in this case satisfies the four-part Brown test for admissibility. IV. Having determined that the trial court did not err when it admitted expert and grand jury testimony, we now turn to a consideration of appellant’s contention that the evidence introduced at trial was insufficient to support a verdict of guilt. When considering a challenge to the sufficiency of the evidence, we must view the totality of the evidence, along with all favorable inferences drawn therefrom, in the light most favorable to the government. United States v. Green, 548 F.2d 1261, 1266 (6th Cir. 1977). When considered thusly, it is clear that sufficient evidence was presented to the jury to support its verdict of guilt in the instant case. Evidence introduced at trial placed appellant, as the alter ego of KLR, in the exclusive chain of possession of PCL bottoms. Eyewitnesses saw him at the dump site on numerous occasions with silver or chrome colored tankers. The inference is clear that these were Chem-Dyne tankers. He was seen washing these tankers out, and on some occasions a hose was seen extending from the tankers into the sewer. This evidence alone would seem to adequately support a verdict of guilt. In addition, however, a substantial amount of convincing expert testimony was introduced. Thus, there was abundant evidence presented to the jury that supports its verdict. The court has carefully considered the other issues presented on this appeal and finds them without merit. Accordingly, the judgment of conviction of appellant for violations of the Federal Water Pollution and Control Act is AFFIRMED. . Section 1319 is the criminal enforcement section of portions of the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.). The specific sections that appellant was convicted of violating, 33 U.S.C. §§ 1311 and 1317, provide authority for the Administrator of the Environmental Protection Agency to establish guidelines for the disposal of pollutants. Failure to follow the guidelines established pursuant to those sections results in the imposition of criminal penalties pursuant to Section 1319. . Velsicol had no knowledge of Chem-Dyne’s contract with KLR to dispose of PCL bottoms until some time after the dumping incident. . This is essentially a Confrontation Clause challenge, as appellant’s main argument against the use of grand jury testimony is that it is unreliable because before the grand jury “leading questions and hearsay are permitted; confrontation is not.” Appellant’s Brief at 49. . FID is the abbreviation for flame ionization detector and FPD for flame photometric detector. The FPD is 100 times as sensitive as the FID. Although these two detectors reveal re-suits that are independently reliable, they may be attached to the column to simultaneously record data as the molecules elute from the column. . In Application of American Society for Testing Materials, 231 F.Supp. 686 (E.D.Pa.1964), ASTM was described by the court as follows: ASTM is a non-profit, charitable organization. It writes standards by which building materials and similar matters may be judged. These standards are adopted and relied upon, often without any independent investigation, by those who want to buy materials suited to their purposes. Among those who so rely are municipalities, state governments, and departments of the Federal Government. ASTM has about 12,000 members. Its membership is composed of three categories: producers, consumers, and general interest (academic, etc.). Its specifications are written by technically qualified committees composed of members from the three categories. Id. at 688. 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_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. WILSON BANKING COMPANY, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Circuit Court of Appeals, Fifth Circuit. February 25, 1929. Rehearing Denied March 25, 1929. No. 5385. St. Clair Adams, of New Orleans, La. (G. A. Wilson, of; Greenwood, Miss., on the brief), for petitioner. Mabel Walker Willebrandt, Asst. Atty. Gen., Sewall Key and Harvey R. Gamble, Sp. Assts. to the Atty. Gen., and C. M. Charest, General Counsel, Bureau of Internal Revenue, and Thos. P. Dudley, Jr., Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C. (Irwin R. Blaisdell, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C., on the brief), for respondent. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. In this case the material facts axe these: Petitioner is a Mississippi hanking corporation, with a capital stock of $25,000, all of which, except qualifying shares, is owned by G. A. Wilson. When the bank was organized, G. A. Wilson deposited eight promissory notes, of the face value of $174,100. The notes were paid at maturity. The interest, amounting to some $12,000, was credited to the surplus of the honk and the balance was credited to Wilson’s account. There were very few withdrawals from this account, and from time to time it was increased. However, it was always subject to be checked out by Wilson. Petitioner, in making his returns for profit taxes for 1919 and 1920, sought to include this account as capital. This was rejected by the Commissioner of Internal Revenue, and the tax determined accordingly. On appeal to the Board of Tax Appeals, the ruling of the Commissioner was sustained. The ease presents merely questions of fact, and we find nothing in the record that would warrant a reversal of the judgment. Affirmed. 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_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Phil BAKER, Petitioner, v. UNITED STATES DEPARTMENT OF the INTERIOR BOARD OF MINE OPERATIONS APPEALS, Respondent, North American Coal Corporation, Intervenor. No. 77-1973. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 22, 1978. Decided Nov. 29, 1978. Charles E. DeBord, II, Wellsburg, W. Va., with whom John W. Cooper, Wellsburg, W. Va., was on brief, for petitioner. Timothy M. Biddle, Washington, D. C., with whom John C. Reitz, Washington, D. C., was on brief, for intervenor. Robert E. Kopp and Mark H. Gallant, Attys., Dept, of Justice, Washington, D. C., for respondent. Before McGOWAN and TAMM, Circuit Judges, and JUNE L. GREEN, United States District Judge for the District of Columbia. Sitting by designation pursuant to 28 U.S.C. § 292(a). Opinion for the court filed by TAMM, Circuit Judge. TAMM, Circuit Judge: In this case we are called upon to interpret section 110(b) of the Federal Coal Mine Health and Safety Act of 1969 (the Act). In accord with the recent precedent of this court, and the legislative intent behind section 110(b), we hold that a miner who makes a safety complaint is protected from employer retaliation whether or not the miner intended the complaint to reach federal officials at the time it was made. We also hold that an administrative law judge considering an application for relief under section 110(b) may not find violations of mandatory safety standards outside of the particular statutory procedure created for adjudication of safety violations. I The petitioner, Phil Baker, is a coal miner employed by The North American Coal Corporation at its Powhatan No. 1 mine in Powhatan Point, Ohio. On May 21, 1974, Baker was working as the operator of a continuous miner, a hydraulically powered cutting machine. The present controversy arose when Baker refused to follow directions of the mine section mechanic, Wayne Kaldor, to operate the miner in a manner Baker believed to be dangerous. After Baker’s refusal, he and Kaldor sought out the section foreman, Larry McNear. McNear ordered Baker to operate the machine. Baker repeated his belief that such a procedure would be unsafe. McNear repeated his order. Baker again refused and asked McNear to call a union safety committeeman. McNear told Baker to obey his order or risk removal from work. Baker asked to talk with Joe Robson, a union safety committeeman. McNear and Baker apparently continued to argue until Baker picked up a nearby telephone pager and asked the mine dispatcher to call Joe Robson. McNear swiftly ripped the telephone loose, severing the communications wires. After the phone was repaired minutes later, Baker talked with a safety committeeman and, pursuant to his instructions, returned to work. Nevertheless, the incident appears to have created great controversy at the mine. The next day, Joe Robson, through the union mine safety committee, filed a safety grievance against Larry McNear charging that McNear refused to allow Baker to contact his safety committeeman and asking that McNear be suspended until he was retrained in safety procedures. The mine was idled by a work stoppage the same day, apparently because of the dispute. Several meetings were held between the union and mine management. On May 23, 1974, union and management officials and employees met again. At the meeting, the union repeated its demands that McNear be suspended and retrained. After the meeting ended, mine management personnel told Baker he would be fired in five days unless the union withdrew its charge against McNear. Fearing Baker would lose his job, the union capitulated. A month later, however, Baker filed an application with the Secretary of the Interi- or for review of alleged acts of discrimination pursuant to section 110(b)(2) of the Act. After holding five days of hearings, the administrative law judge (ALJ) concluded that Baker’s notification to McNear of the alleged safety violation constituted a notification to the Secretary of the Interior or his authorized representative and the institution of proceedings within the meaning of section 110(b)(1)(A) & (B) and our decision in Phillips v. Interior Board of Mine Operations Appeals, 163 U.S.App.D.C. 104, 500 F.2d 772 (1974). Appendix (App.) at 17, 19-20. Thus, the ALJ concluded that McNear’s action on May 21 and the mine management’s threats on May 23 constituted discrimination in contravention of section 110(b). Id. at 20-21. The Interior Board of Mine Operations Appeals (the Board) reversed, finding that the ALJ had misapplied our ruling in Phillips. According to the Board, the Phillips court wanted “to afford protection to miners who intend to notify the federal authorities, but who are thwarted in doing so by preemptory retaliatory action by an employer.” Baker v. North American Coal Co., 84 Interior Dec. 877, 886 (1977) (emphasis in original). The Board concluded that because Baker did not intend to contact federal authorities and because he and the union viewed the events primarily as a private labor dispute, Baker’s complaint to McNear did not constitute a notification under section 110(b). Id. at 888. This petition for review followed the Board’s decision. II The Board’s imposition of an “intent” requirement into the notification provisions of section 110(b)(1) was based on its reading of this court’s decisions in Phillips and in Munsey v. Morton (Munsey I), 165 U.S.App.D.C. 379, 507 F.2d 1202 (1974) and legislative history. See 84 Interior Dec. at 886-87. We believe, however, that a close reading of our own precedent and legislative history leads inexorably to the opposite conclusion. As the Board recognized, neither the Phillips nor the Munsey I courts held that every statement made by a miner to his foreman about a safety issue would be considered notification to the Secretary of the Interior or his authorized representative within the meaning of section 110(b). However, the limiting principle was not, as the Board suggests, whether a miner intended to notify federal officials. Rather, the court’s concern was whether the miner had “ ‘instituted [a] proceeding’ with the closest representative of any authority, i. e., his foreman, by making an effective complaint of a violation of the Mine Safety Act.” Phillips v. Interior Board of Mine Operations Appeals, 163 U.S.App.D.C. at 113, 500 F.2d at 781. Finding that notification of a foreman was the first step in making mine safety complaints in Phillips’s mine, this court concluded that the miner had invoked the protection of the Act. Id. at 778-81. Munsey I proceeded on the same principle. The court remanded to the Board for consideration of whether Phillips controlled the facts of that case. 165 U.S. App.D.C. at 386, 507 F.2d at 1209. The remand was necessary because the court had before it no findings concerning the procedures in use at Munsey’s mine for the reporting of safety provisions. Neither case suggested that the miner’s intent to notify federal authorities at the time he made the complaint was important. Indeed the Phillips court impliedly rejected the Board’s alternative holding that Phillips was not entitled to relief because he had not intended to notify the Secretary or his authorized representative. See 163 U.S. App.D.C. at 109-110, 500 F.2d at 777-78. Nor did it discuss Phillips’s intent. Similarly, the Munsey I court remanded Munsey’s case to the Board for reconsideration in light of Phillips without suggesting that intent to notify federal officials be considered on remand. The Board argues, however, that its decision is consistent with the congressional purposes behind enactment of section 110(b). Specifically, the Board pointed in its decision to remarks made on the floor of the Senate by the section’s sponsor, Senator Edward M. Kennedy, to support its conclusion that the congressional purpose of encouraging the reporting of safety violations to federal officials is not served when a miner is disciplined before he intends to contact federal officials. 84 Interior Dec. at 887. Senator Kennedy’s remarks certainly emphasize the importance of the remedial purposes of the section: My proposed amendment would make it unlawful for any person to discharge or otherwise discriminate against a miner for bringing suspected violations of this act to the attention of authorities. [T]he rationale for this amendment is clear. For safety’s sake we want to encourage the reporting of suspected violations of health and safety regulations. 115 Cong.Rec. 27948 (1969). We believe, however, that the Board’s imposition of a specific intent requirement would frustrate the congressional purpose to encourage the reporting of safety violations in two ways. First, we believe that it would leave many miners without any protection from retaliation because they have not, in fact, formed any intent to contact federal officials at the time they informed their foreman of suspected safety or health problems. Their lack of intent, however, would not necessarily indicate that the miners saw the problem as one strictly for local concern; rather, it is likely that most miners would not form an intent to contact federal officials until they realized that mine management was not responsive to their complaints. Lack of such intent should not disqualify miners from the protection of section 110(b), because the same desire to promote greater safety that underlies section 110(b) also suggests that safety complaints should, if possible, be resolved at the local level. The intent requirement, however, would allow mine management to fire with impunity miners who had not yet realized that management will not consider their safety complaints, and thus had not yet formed an intent to seek federal aid. Imposition of the specific intent requirement used by the Board would bring about the situation the Phillips court strove to avoid, for “a foreman’s determination of safety would become final.” At 113, 500 F.2d at 781. Second, we believe the imposition of a specific intent requirement would place a significant burden even on those miners who did possess the requisite intent. Such a requirement would mandate an inquiry into the subjective state of mind of a miner who, as in this case, has already demonstrated his concern over safety issues and who has suffered threats and coercion from the mine management because of it. Intent may be difficult to prove, and the congressional desire to encourage the reporting of safety violations cannot be squared with the addition of a test that might well leave a miner without recourse against the most blatant acts of employer discrimination. Moreover, miners cognizant of the necessity to prove intent could be deterred from reporting safety violations through normal mine procedures. We must, therefore, reject establishment of a specific intent test. Because the Board adopted the ALJ’s factual findings, 84 Interior Dec. at 885, we order that the judgment of the administrative law judge be reinstated insofar as it pertains to findings of and remedies for discrimination under section 110(b). Ill In his application for review of acts of discrimination, Baker charged that The North American Coal Company violated section 110(b)(1) of the Act. App. at 3. When the ALJ handed down his decision, however, he found not only violations of section 110(b)(1)(A) & (B), but also substantive violations of mandatory safety standards. App. at 18; see 30 U.S.C. § 811 (1976) (current version at 30 U.S.C.A. § 811 (1978)). The Board reversed the ALJ’s latter findings on the ground that an administrative law judge may not find a coal mine operator in violation of a mandatory safety standard absent a charge to that effect brought by federal mine inspectors. 84 Interior Dec. at 889. This conclusion is in accord with the Board’s own precedent. See Zeigler Coal Co., 80 Interior Dec. 626, 630 (1973). Additionally, the Board held that the finding of an actual violation of a safety standard is irrelevant in a proceeding under section 110(b). We must decide whether the ALJ acted within his authority when he found violations of mandatory safety standards in a proceeding on the application for review of alleged discrimination under section 110(b)(2). We believe that the Board’s conclusion is correct. Section 103(g) of the Act allows a miner’s representative to demand an immediate inspection of a mine whenever he has reasonable grounds to believe that a violation of a mandatory safety standard exists or imminent danger is threatened. Upon inspection, an authorized representative of the Secretary of Interior may issue a notice of violation under section 104 of the Act which is appealable to the Secretary under section 105. Civil penalties may be assessed under section 109 of the Act. Section 110(b)(2) of the Act gives a miner the right, exercised in this case, to apply to the Secretary for review of an allegedly retaliatory discharge or discrimination. Although an allegation under section 110(b) mandates adjudication of issues pertaining to retaliation for a report of a safety violation, an administrative law judge need not decide whether safety violations actually existed. This fact, along with the explicit presence of a separate statutory procedure for finding safety violations, leads us to hold that an administrative law judge may not find a violation of mandatory safety standards absent the particular statutory proceedings for bringing that issue to federal attention. Therefore, we affirm the Board’s holding. Affirmed in part; reversed in part. . Section 110(b), 30 U.S.C. § 820(b) (1976) provides: (1) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that such miner or representative (A) has notified the Secretary [of the Interior] or his authorized representative of any alleged violation or danger, (B) has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or (C) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter. (2) Any miner or a representative of miners who believes that he has been discharged or otherwise discriminated against by any person in violation of paragraph (1) of this subsection may, within thirty days after such violation occurs, apply to the Secretary for a review of such alleged discharge or discrimination. A copy of the application shall be sent to such person who shall be the respondent. Upon receipt of such application, the Secretary shall cause such investigation to be made as he deems appropriate. Such investigation shall provide an opportunity for a public hearing at the request of any party to enable the parties to present information relating to such violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Any such hearing shall be of record and shall be subject to section 554 of Title 5. Upon receiving the report of such investigation, the Secretary shall make findings of fact. If he finds that such violation did occur, he shall issue a decision, incorporating an order therein, requiring the person committing such violation to take such affirmative action to abate the violation as the Secretary deems appropriate, including, but not limited to, the rehiring or reinstatement of the miner or representative of miners to his former position with back pay. If he finds that there was no such violation, he shall issue an order denying the application. Such order shall incorporate the Secretary’s findings therein. Any order issued by the Secretary under this paragraph shall be subject to judicial review in accordance with section 816 of this title. Violations by any person of paragraph (1) of this subsection shall be subject to the provisions of sections 818 and 819(a) of this title. (3) Whenever an order is issued under this subsection, at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses (including the attorney’s fees) as determined by the Secretary to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person committing such violation. The section has been amended. See 30 U.S. C.A. § 815(c)(1) (1978). For a description of the Federal Mines Safety and Health Amendments Act of 1977, 30 U.S.C.A. §§ 801-961 (1978), see Munsey v. Federal Mine Safety and Health Review Comm’n, 193 U.S.App.D.C.-, at---n. 2, 595 F.2d 735 at 736-738 n. 2 (1978). . We also apply this holding in Munsey v. Federal Mine Safety and Health Review Comm’n, 193 U.S.App.D.C. -, at - n. 5, 595 F.2d 735, at 740 n. 5 (1978). . The North American Coal Corporation appeared as intervenor betore this court. . The Board suggests that Baker’s lack of intent to notify federal officials is demonstrated by his decision to invoke union collective bargaining procedures before he sought protection from federal authorities. See Baker v. North American Coal Co., 84 Interior Dec. 877, 888 (1977). Our conclusion that the Phillips court did not ratify an intent requirement is bolstered by the fact that Phillips also sought recourse through collective bargaining procedures before he contacted federal authorities. See Phillips v. Interior Bd. of Mine Operations Appeals, 163 U.S.App.D.C. 104, 108-09, 500 F.2d 772, 776-77 (1974). . The administrative law judge found that The North American Coal Corporation, through its foreman Larry McNear, had violated 30 C.F.R. §§ 75.1600-2(e), 75.1722(a) and 75.1725(a) (1976). Appendix at 18. . 30 U.S.C. § 813(g) (1976) (current version at 30 U.S.C.A. § 813(g) (1978)). . 30 U.S.C. § 814 (1976) (current version at 30 U.S.C.A. §§ 814 & 817 (1978)). . 30 U.S.C. § 815 (1976) (current version at 30 U.S.C.A. § 815 (1978)). . 30 U.S.C. § 819 (1976) (current version at 30 U.S.C.A. § 820 (1978)). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_issue_10	L	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. NEVADA DEPARTMENT OF HUMAN RESOURCES et al. v. HIBBS et al. No. 01-1368. Argued January 15, 2003 Decided May 27, 2003 Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 740. Stevens, J., filed an opinion concurring in the judgment, post, p. 740. Sc aha, J., filed a dissenting opinion, post, p. 741. Kennedy, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined, post, p. 744. Paul G. Taggart, Deputy Attorney General of Nevada, argued the cause for petitioners. With him on the briefs were Frankie Sue Del Papa, Attorney General, and Traci L. Lovitt. Cornelia T. L. Pillará argued the cause for respondent Hibbs. With her on the brief were Jonathan J. Frankel, Judith L. Lichtman, and Treva J. PJearne. Assistant Attorney General Dinh argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorneys General Boyd and McCol-lum, Deputy Solicitor General Clement, Patricia A. Millett, Mark B. Stern, and Kathleen Kane. Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, Nathan A. For-rester, Solicitor General, and Charles B. Campbell, Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, M. Jane Brady of Delaware, Earl I. Anzai of Hawaii, Steve Carter of Indiana, Don Stenberg of Nebraska, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark Shurtleff of Utah, and Jerry IV Kilgore of Virginia; for the Coalition for Local Sovereignty by Kenneth B. Clark; and for the Pacific Legal Foundation by Deborah J. La Fetra. Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Denise A. Hartman, Robert H. Easton, and David Axinn, Assistant Solicitors General, and Hilary Klein, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Richard Blu-menthal of Connecticut, James Ryan of Illinois, Michael Hatch of Minnesota, Patricia A Madrid of New Mexico, and Christine 0. Gregoire of Washington; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, Laurence Gold, and Michael H. Gottesman; for the Lawyers’ Committee for Civil Rights Under Law et al. by Sidney S. Rosdeitcher, Barbara R. Arnwine, Thomas J. Henderson, Michael Foreman, Vincent A Eng, Dennis Court-land Hayes, and Angela Ciccolo; for the National Women’s Law Center et al. by Walter Dellinger, Pamela Harris, Marcia D. Greenberger, Judith C. Appelbaum, and Dina R. Lassow; for Senator Christopher Dodd et al. by Mark E. Haddad and Carter G. Phillips; and for Alice Kessler-Harris et al. by Isabelle Katz Pinzler, Conrad K. Harper, and William T. Russell, Jr. Chief Justice Rehnquist delivered the opinion of the Court. The Family and Medical Leave Act of 1993 (FMLA or Act) entitles eligible employees to take up to 12 work weeks of unpaid leave annually for any of several reasons, including the onset of a “serious health condition” in an employee’s spouse, child, or parent. 107 Stat. 9, 29 U. S. C. §2612(a) (1)(C). The Act creates a private right of action to seek both equitable relief and money damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction,” § 2617(a)(2), should that employer “interfere with, restrain, or deny the exercise of” FMLA rights, § 2615(a)(1)- We hold that employees of the State of Nevada may recover money damages in the event of the State’s failure to comply with the family-care provision of the Act. Petitioners include the Nevada Department of Human Resources (Department) and two of its officers. Respondent William Hibbs (hereinafter respondent) worked for the Department’s Welfare Division. In April and May 1997, he sought leave under the FMLA to care for his ailing wife, who was recovering from a car accident and neck surgery. The Department granted his request for the full 12 weeks of FMLA leave and authorized him to use the leave intermittently as needed between May and December 1997. Respondent did so until August 5,1997, after which he did not return to work. In October 1997, the Department informed respondent that he had exhausted his FMLA leave, that no further leave would be granted, and that he must report to work by November 12,1997. Respondent failed to do so and was terminated. Respondent sued petitioners in the United States District Court seeking damages and injunctive and declaratory relief for, inter alia, violations of 29 U. S. C. § 2612(a)(1)(C). The District Court awarded petitioners summary judgment on the grounds that the FMLA claim was barred by the Eleventh Amendment and that respondent’s Fourteenth Amendment rights had not been violated. Respondent appealed, and the United States intervened under 28 U. S. C. § 2403 to defend the validity of the FMLA’s application to the States. The Ninth Circuit reversed. 273 F. 3d 844 (2001). We granted certiorari, 536 U. S. 938 (2002), to resolve a split among the Courts of Appeals on the question whether an individual may sue a State for money damages in federal court for violation of § 2612(a)(1)(C). Compare Kazmier v. Widmann, 225 F. 3d 519, 526, 529 (CA5 2000), with 273 F. 3d 844 (case below). For over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 363 (2001); Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 669-670 (1999); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996); Hans v. Louisiana, 134 U. S. 1, 15 (1890). Congress may, however, abrogate such immunity in federal court if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment. See Garrett, supra, at 363; Blatchford v. Native Village of Noatak, 501 U. S. 775, 786 (1991) (citing Dellmuth v. Muth, 491 U. S. 223, 228 (1989)). The clarity of Congress’ intent here is not fairly debatable. The Act enables employees to seek damages “against any employer (including a public agency) in any Federal or State court of competent jurisdiction,” 29 U. S. C. § 2617(a)(2), and Congress has defined “public agency” to include both “the government of a State or political subdivision thereof” and “any agency of . a State, or a political subdivision of a State,” §§203(x), 2611(4)(A)(iii). We held in Kimel that, by using identical language in the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., Congress satisfied the clear statement rule of Dellmuth. 528 U. S., at 73-78. This case turns, then, on whether Congress acted within its constitutional authority when it sought to abrogate the States’ immunity for purposes of the FMLA’s family-leave provision. In enacting the FMLA, Congress relied on two of the powers vested in it by the Constitution: its Article I commerce power and its power under § 5 of the Fourteenth Amendment to enforce that Amendment’s guarantees. Congress may not abrogate the States’ sovereign immunity pursuant to its Article I power over commerce. Seminole Tribe, supra. Congress may, however, abrogate States’ sovereign immunity through a valid exercise of its § 5 power, for “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment.” Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976) (citation omitted). See also Garrett, supra, at 364; Kimel, supra, at 80. Two provisions of the Fourteenth Amendment are relevant here: Section 5 grants Congress the power “to enforce” the substantive guarantees of § 1 — among them, equal protection of the laws — by enacting “appropriate legislation.” Congress may, in the exercise of its § 5 power, do more than simply proscribe conduct that we have held unconstitutional. “ ‘Congress’ power “to enforce” the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.’ ” Garrett, supra, at 365 (quoting Kimel, supra, at 81); City of Boerne v. Flores, 521 U. S. 507, 536 (1997); Katzenbach v. Morgan, 384 U. S. 641, 658 (1966). In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct. City of Boerne also confirmed, however, that it falls to this Court, not Congress, to define the substance of constitutional guarantees. 521 U. S., at 519-524. “The ultimate interpretation and determination of the Fourteenth Amendment’s substantive meaning remains the province of the Judicial Branch.” Kimel, 528 U. S., at 81. Section 5 legislation reaching beyond the scope of § l’s actual guarantees must be an appropriate remedy for identified constitutional violations, not “an attempt to substantively redefine the States’ legal obligations.” Id., at 88. We distinguish appropriate prophylactic legislation from “substantive redefinition of the Fourteenth Amendment right at issue,” id., at 81, by applying the test set forth in City of Boerne: Valid § 5 legislation must exhibit “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,” 521 U. S., at 520. The FMLA aims to protect the right to be free from gender-based discrimination in the workplace. We have held that statutory classifications that distinguish between males and females are subject to heightened scrutiny. See, e. g., Craig v. Boren, 429 U. S. 190, 197-199 (1976). For a gender-based classification to withstand such scrutiny, it must “serv[e] important governmental objectives,” and “the discriminatory means employed [must be] substantially related to the achievement of those objectives.” United States v. Virginia, 518 U. S. 515, 533 (1996) (citations and internal quotation marks omitted). The State’s justification for such a classification “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Ibid. We now inquire whether Congress had evidence of a pattern of constitutional violations on the part of the States in this area. The history of the many state laws limiting women’s employment opportunities is chronicled in — and, until relatively recently, was sanctioned by — this Court’s own opinions. For example, in Bradwell v. State, 16 Wall. 130 (1873) (Illinois), and Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (Michigan), the Court upheld state laws prohibiting women from practicing law and tending bar, respectively. State laws frequently subjected women to distinctive restrictions, terms, conditions, and benefits for those jobs they could take. In Muller v. Oregon, 208 U. S. 412, 419, n. 1 (1908), for example, this Court approved a state law limiting the hours that women could work for wages, and observed that 19 States had such laws at the time. Such laws were based on the related beliefs that (1) a woman is, and should remain, “the center of home and family life,” Hoyt v. Florida, 368 U. S. 57, 62 (1961), and (2) “a proper discharge of [a woman’s] maternal functions — having in view not merely her own health, but the well-being of the race — justifies] legislation to protect her from the greed as well as the passion of man,” Muller, supra, at 422. Until our decision in Reed v. Reed, 404 U. S. 71 (1971), “it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ ” — such as the above beliefs — “could be conceived for the discrimination.” Virginia, supra, at 531 (quoting Goesaert, supra, at 467). Congress responded to this history of discrimination by abrogating States’ sovereign immunity in Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. §2000e-2(a), and we sustained this abrogation in Fitzpatrick. But state gender discrimination did not cease. “[I]t can hardly be doubted that . . . women still face pervasive, although at times more subtle, discrimination ... in the job market.” Frontiero v. Richardson, 411 U. S. 677, 686 (1973). According to evidence that was before Congress when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits. Reliance on such stereotypes cannot justify the States’ gender discrimination in this area. Virginia, supra, at 533. The long and extensive history of sex discrimination prompted us to hold that measures that differentiate on the basis of gender warrant heightened scrutiny; here, as in Fitzpatrick, the persistence of such unconstitutional discrimination by the States justifies Congress’ passage of prophylactic § 5 legislation. As the FMLA’s legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent of surveyed private-sector employees were covered by maternity leave policies, while only 18 percent were covered by paternity leave policies. S. Rep. No. 103-3, pp. 14-15 (1993). The corresponding numbers from a similar BLS survey the previous year were 33 percent and 16 percent, respectively. Ibid. While these data show an increase in the percentage of employees eligible for such leave, they also show a widening of the gender gap during the same period. Thus, stereotype-based beliefs about the allocation of family duties remained firmly rooted, and employers’ reliance on them in establishing discriminatory leave policies remained widespread. Congress also heard testimony that “[pjarental leave for fathers ... is rare. Even... [w]here child-care leave policies do exist, men, both in the 'public and private sectors, receive notoriously discriminatory treatment in their requests for such leave.” Joint Hearing 147 (Washington Council of Lawyers) (emphasis added). Many States offered women extended “maternity” leave that far exceeded the typical 4-to 8-week period of physical disability due to pregnancy and childbirth, but very few States granted men a parallel benefit: Fifteen States provided women up to one year of extended maternity leave, while only four provided men with the same. M. Lord & M. King, The State Reference Guide to Work-Family Programs for State Employees 80 (1991). This and other differential leave policies were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women’s work. Finally, Congress had evidence that, even where state laws and policies were not facially discriminatory, they were applied in discriminatory ways. It was aware of the “serious problems with the discretionary nature of family leave,” because when “the authority to grant leave and to arrange the length of that leave rests with individual supervisors,” it leaves “employees open to discretionary and possibly unequal treatment.” H. R. Rep. No. 103-8, pt. 2, pp. 10-11 (1993). Testimony supported that conclusion, explaining that “[t]he lack of uniform parental and medical leave policies in the work place has created an environment where [sex] discrimination is rampant.” 1987 Senate Labor Hearings, pt. 2, at 170 (testimony of Peggy Montes, Mayor’s Commission on Women’s Affairs, City of Chicago). In spite of all of the above evidence, Justice Kennedy argues in dissent that Congress’ passage of the FMLA was unnecessary because “the States appear to have been ahead of Congress in providing gender-neutral family leave benefits,” post, at 750, and points to Nevada’s leave policies in particular, post, at 755. However, it was only “[s]ince Federal family leave legislation was first introduced” that the States had even “begun to consider similar family leave initiatives.” S. Rep. No. 103-3, at 20; see also S. Rep. No. 102-68, p. 77 (1991) (minority views of Sen. Durenberger) (“[S]o few states have elected to enact similar legislation at the state level”). Furthermore, the dissent’s statement that some States “had adopted some form of family-care leave” before the FMLA’s enactment, post, at 750, glosses over important shortcomings of some state policies. First, seven States had childcare leave provisions that applied to women only. Indeed, Massachusetts required that notice of its leave provisions be posted only in “establishment^] in which females are employed.” These laws reinforced' the very stereotypes that Congress sought to remedy through the FMLA. Second, 12 States provided their employees no family leave, beyond an initial childbirth or adoption, to care for a seriously ill child or family member. Third, many States provided no statutorily guaranteed right to family leave, offering instead only voluntary or discretionary leave programs. Three States left the amount of leave time primarily in employers’ hands. Congress could reasonably conclude that such discretionary family-leave programs would do little to combat the stereotypes about the roles of male and female employees that Congress sought to eliminate. Finally, four States provided leave only through administrative regulations or personnel policies, which Congress could reasonably conclude offered significantly less firm protection than a federal law. Against the above backdrop of limited state leave policies, no matter how generous petitioners’ own may have been, see post, at 755 (dissent), Congress was justified in enacting the FMLA as remedial legislation. In sum, the States’ record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation. We reached the opposite conclusion in Garrett and Kimel. In those cases, the §5 legislation under review responded to a purported tendency of state officials to make age- or disability-based distinctions. Under our equal protection case law, discrimination on the basis of such characteristics is not judged under a heightened review standard, and passes muster if there is “a rational basis for doing so at a class-based level, even if it ‘is probably not true’ that those reasons are valid in the majority of cases.” Kimel, 528 U. S., at 86 (quoting Gregory v. Ashcroft, 501 U. S. 452, 473 (1991)). See also Garrett, 581 U. S., at 367 (“States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational”). Thus, in order to impugn the constitutionality of state discrimination against the disabled or the elderly, Congress must identify, not just the existence of age- or disability-based state decisions, but a “widespread pattern” of irrational reliance on such criteria. Kimel, supra, at 90. We found no such showing with respect to the ADE A and Title I of the Americans with Disabilities Act of 1990 (ADA). Kimel, supra, at 89; Garrett, supra, at 368. Here, however, Congress directed its attention to state gender discrimination, which triggers a heightened level of scrutiny. See, e. g., Craig, 429 U. S., at 197-199. Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational-basis test — it must “serv[e] important governmental objectives” and be “substantially related to the achievement of those objectives,” Virginia, 518 U. S., at 538 — it was easier for Congress to show a pattern of state constitutional violations. Congress was similarly successful in South Carolina v. Katzenbach, 383 U. S. 301, 308-313 (1966), where we upheld the Voting Rights Act of 1965: Because racial classifications are presumptively invalid, most of the States’ acts of race discrimination violated the Fourteenth Amendment. The impact of the discrimination targeted by the FMLA is significant. Congress determined: “Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.” Joint Hearing 100. Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis. We believe that Congress’ chosen remedy, the family-care leave provision of the FMLA, is “congruent and proportional to the targeted violation,” Garrett, supra, at 374. Congress had already tried unsuccessfully to address this problem through Title VII and the amendment of Title VII by the Pregnancy Discrimination Act, 42 U. S. C. § 2000e(k). Here, as in Katzenbach, supra, Congress again confronted a “difficult and intractable proble[m],” Kimel, supra, at 88, where previous legislative attempts had failed. See Katzenbach, supra, at 313 (upholding the Voting Rights Act). Such problems may justify added prophylactic measures in response. Kimel, supra, at 88. By creating an across-the-board, routine employment benefit for all eligible employees, Congress sought to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men. By setting a minimum standard of family leave for all eligible employees, irrespective of gender, the FMLA attacks the formerly state-sanctioned stereotype that only women are responsible for family caregiving, thereby reducing employers’ incentives to engage in discrimination by basing hiring and promotion decisions on stereotypes. The dissent characterizes the FMLA as a “substantive entitlement program” rather than a remedial statute because it establishes a floor of 12 weeks’ leave. Post, at 754. In the dissent’s view, in the face of evidence of gender-based discrimination by the States in the provision of leave benefits, Congress could do no more in exercising its § 5 power than simply proscribe such discrimination. But this position cannot be squared with our recognition that Congress “is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment,” but may prohibit “a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Kimel, supra, at 81. For example, this Court has upheld certain prophylactic provisions of the Voting Rights Act as valid exercises of Congress’ § 5 power, including the literacy test ban and preclearance requirements for changes in States’ voting procedures. See, e. g., Katzenbach v. Morgan, 384 U. S. 641 (1966); Oregon v. Mitchell, 400 U. S. 112 (1970); South Carolina v. Katzenbach, supra. Indeed, in light of the evidence before Congress, a statute mirroring Title VII, that simply mandated gender equality in the administration of leave benefits, would not have achieved Congress’ remedial object. Such a law would allow States to provide for no family leave at all. Where “[t]wo-thirds of the nonprofessional caregivers for older, chronically ill, or disabled persons are working women,” H. R. Rep. No. 103-8, pt. 1, at 24; S. Rep. No. 103-3, at 7, and state practices continue to reinforce the stereotype of women as caregivers, such a policy would exclude far more women than men from the workplace. Unlike the statutes at issue in City of Boerne, Kimel, and Garrett, which applied broadly to every aspect of state employers’ operations, the FMLA is narrowly targeted at the faultline between work and family — precisely where sex-based overgeneralization has been and remains strongest— and affects only one aspect of the employment relationship. Compare Ragsdale v. Wolverine World Wide, Inc., 535 U. S. 81, 91 (2002) (discussing the “important limitations of the [FMLA’s] remedial scheme”), with City of Boerne, 521 U. S., at 532 (the “[s]weeping coverage” of the Religious Freedom Restoration Act of 1993); Kimel, 528 U. S., at 91 (“the indiscriminate scope of the [ADEA’s] substantive requirements”); and Garrett, 531 U. S., at 361 (the ADA prohibits disability discrimination “in regard to [any] terms, conditions, and privileges of employment” (internal quotation marks omitted)). We also find significant the many other limitations that Congress placed on the scope of this measure. See Florida Prepaid, 527 U. S., at 647 (“[W]here ‘a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress’ means are proportionate to ends legitimate under §5’” (quoting City of Boerne, supra, at 532-533)). The FMLA requires only unpaid leave, 29 U. S. C. § 2612(a)(1), and applies only to employees who have worked for the employer for at least one year and provided 1,250 hours of service within the last 12 months, § 2611(2)(A). Employees in high-ranking or sensitive positions are simply ineligible for FMLA leave; of particular importance to the States, the FMLA expressly excludes from coverage state elected officials, their staffs, and appointed policymakers. §§2611(2)(B)(i) and (3), 203(e) (2)(C). Employees must give advance notice of foreseeable leave, § 2612(e), and employers may require certification by a health care provider of the need for leave, §2613. In choosing 12 weeks as the appropriate leave floor, Congress chose “a middle ground, a period long enough to serve ‘the needs of families’ but not so long that it would upset ‘the legitimate interests of employers.’” Ragsdale, supra, at 94 (quoting 29 U. S. C. § 2601(b)). Moreover, the cause of action under the FMLA is a restricted one: The damages recoverable are strictly defined and measured by actual monetary losses, §§ 2617(a)(l)(A)(i) — (iii), and the accrual period for backpay is limited by the Act’s 2-.year statute of limitations (extended to three years only for willful violations), §§ 2617(c)(1) and (2). For the above reasons, we conclude that § 2612(a)(1)(C) is congruent and proportional to its remedial object, and can “be understood as responsive to, or designed to prevent, unconstitutional behavior.” City of Boerne, supra, at 532. The judgment of the Court of Appeals is therefore Affirmed. Compare 29 U. S. C. § 2601(b)(1) (“It is the purpose of this Act... to •balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity”) with § 2601(b)(5) (“to promote the goal of equal employment opportunity for women and men, pursuant to [the Equal Protection C]lause”) and § 2601(b)(4) (“to accomplish [the Act’s other purposes] in a manner that, consistent with the Equal Protection Clause..., minimizes the potential for employment discrimination on the basis of sex”). See also S. Rep. No. 103-3, p. 16 (1993) (the FMLA “is based not only on the Commerce Clause, but also on the guarantees of equal protection and due process embodied in the 14th Amendment”); H. R. Rep. No. 103-8, pt. 1, p. 29 (1993) (same). The text of the Act makes this clear. Congress found that, “due to the nature of the roles of men and women in our society, the primary responsibility for family caretaking often falls on women, and such responsibility affects the working lives of women more than it affects the working lives of men.” 29 U. S. C. § 2601(a)(5). In response to this finding, Congress sought “to accomplish the [Act’s other] purposes ... in a manner that.. . minimizes the potential for employment discrimination on the basis of sex by ensuring generally that leave is available ... on a gender-neutral basis[,J and to promote the goal of equal employment opportunity for women and men ....” §§ 2601(b)(4) and (5) (emphasis added). While this and other material described leave policies in the private sector, a 50-state survey also before Congress demonstrated that “[t]he proportion and construction of leave policies available to public sector employees differs little from those offered private sector employees.” The Parental and Medical Leave Act of 1986: Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 33 (1986) (hereinafter Joint Hearing) (statement of Meryl Frank, Director of the Yale Bush Center Infant Care Leave Project). See also id., at 29-30. See, e. g., id., at 16 (six weeks is the medically recommended pregnancy disability leave period); H. R. Rep. No. 101-28, pt. 1, p. 30 (1989) (referring to Pregnancy Discrimination Act legislative history establishing four to eight weeks as the medical recovery period for a normal childbirth). For example, state employers’ collective-bargaining agreements often granted extended “maternity” leave of six months to a year to women only. Gerald McEntee, President of the American Federation of State, County and Municipal Employees, AFL-CIO, testified that “the vast majority of our contracts, even though we look upon them with great pride, really cover essentially maternity leave, and not paternity leave.” The Parental and Medical Leave Act of 1987: Hearings before the Subcommittee on Children, Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess., pt. 1, p. 385 (1987) (hereinafter 1987 Senate Labor Hearings). In addition, state leave laws often specified that catchall leave-without-pay provisions could be used for extended maternity leave, but did not authorize such leave for paternity purposes. See, e. g., Family and Medical Leave Act of 1987: Joint Hearing before the House Committee on Post Office and Civil Service, 100th Cong., 1st Sess., 2-5 (1987) (Rep. Gary Ackerman recounted suffering expressly sex-based denial of unpaid leave of absence where benefit was ostensibly available for “child care leave”). Evidence pertaining to parenting leave is relevant here because state discrimination in the provision of both types of benefits is based on the same gender stereotype: that women’s family duties trump those of the workplace. Justice Kennedy’s dissent (hereinafter dissent) ignores this common foundation that, as Congress found, has historically produced discrimination in the hiring and promotion of women. See post, at 748-749. Consideration of such evidence does not, as the dissent contends, expand our § 5 inquiry to include “general gender-based stereotypes in employment.” Post, at 749 (emphasis added). To the contrary, because parenting and family leave address very similar situations in which work and family responsibilities conflict, they implicate the same stereotypes. Mass. Gen. Laws, ch. 149, §105D (West 1997) (providing leave to “female employee[s]” for childbirth or adoption); see also 3 Colo. Code Regs. §708-1, Rule 80.8 (2002) (pregnancy disability leave only Question: What is the issue of the decision? A. federal-state ownership dispute (cf. Submerged Lands Act) B. federal pre-emption of state court jurisdiction C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does. D. Submerged Lands Act (cf. federal-state ownership dispute) E. national supremacy: commodities F. national supremacy: intergovernmental tax immunity G. national supremacy: marital and family relationships and property, including obligation of child support H. national supremacy: natural resources (cf. natural resources - environmental protection) I. national supremacy: pollution, air or water (cf. natural resources - environmental protection) J. national supremacy: public utilities (cf. federal public utilities regulation) K. national supremacy: state tax (cf. state tax) L. national supremacy: miscellaneous M. miscellaneous federalism Answer:
songer_respond2_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 second 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. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, et al., Defendants. No. 81-1664. United States Court of Appeals, District of Columbia Circuit. Argued En Banc Oct. 14, 1981. Decided April 6, 1982. John Silard, Washington, D. C., with whom Joseph L. Rauh, Jr., James C. Turner and Judy Lyons Wolf, Washington, D. C., were on the brief, for plaintiffs. Carolyn U. Oliphant, Sp. Asst. Gen. Counsel, Federal Election Com’n, Washington, D. C., with whom Charles N. Steele, Gen. Counsel, Richard B. Bader, Asst. Gen. Counsel, and Jeffrey H. Bowman, Atty., Federal Election Com’n, Washington, D. C., were on the brief, for defendants. Kathleen Imig Perkins, Atty., Federal Election Com’n, Washington, D. C., also entered an appearance for defendants. Before ROBINSON, Chief Judge, and TAMM, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges. Opinion PER CURIAM. Opinion concurring in part and concurring in the result filed by Circuit Judge HARRY T. EDWARDS. OUTLINE OF OPINION Page I. Introduction_________________________ 1094 II. History of the Case-------------------- 1095 III. Standing---------------------------- 1097 IV. Analysis ____________________________ 1099 A. Is the asserted imbalance between corporations and labor unions under the 1976 FECA amendments unconstitutional?___________________________1099 1. Background of the 1976 amendments ________________________1100 2. The alleged imbalance___________1103 3. The standard of review__________1105 4. The governmental interest.......1106 5. Means scrutiny: to what extent are corporations and labor unions similarly situated for the purpose at hand?______________ 1107 B. Does the statute impair career employees’ First Amendment right of political abstention by permitting the corporate PAC solicitation as detailed in the record?_____________________U09 1. Is solicitation of career employees inherently coercive?----------------1110 2. The considered judgment of Congress and the deference due to it___1112 C. Does the use of general corporate assets to establish and support a corporate PAC violate the First Amendment rights of dissenting shareholders?___________1115 V. Conclusion __________________________ms I. INTRODUCTION Before this en banc court are three questions concerning the constitutionality of two provisions of the Federal Election Campaign Act (“FECA” or the “Act”) that regulate the solicitation practices of corporations and labor unions. Plaintiffs — a national labor organization and six individuals — argue that Congress has acted without sufficient regard for their political speech rights and the political speech rights of others in face of the proliferation of corporate political action committees (“PACs”) and their concomitant increased influence in federal elections. Specifically, plaintiffs allege that (1) Congress in the 1976 FECA amendments has created an unconstitutional imbalance between corporations and labor unions, in favor of the former, by allowing corporate PACs to solicit their executive and administrative (career) employees; (2) such corporate solicitation of executive and administrative employees, which occurs under inherently coercive circumstances, violates the First Amendment right of career employees to abstain from political expression; and (3) the provision of the Act that authorizes the financing of operating and administrative costs of a corporate PAC from general corporate assets violates the First Amendment rights of dissenting shareholders. On June 3, 1981, the district court certified three questions matching these allegations pursuant to section 315(a) of the Act, 2 U.S.C. § 437h(a), the extraordinary judicial review provision of the Act, which provides: “[t]he district court immediately shall certify all questions of constitutionality of this Act to the United States Court of Appeals for the circuit involved, which shall hear the matter sitting en banc.” Finding none of plaintiffs’ arguments legally persuasive, we rule against them on each of the certified questions, and hold that the congressional product before us does not transgress constitutional limitations. II. HISTORY OF THE CASE On October 9, 1979, plaintiffs filed an administrative complaint with the Federal Election Commission (“FEC” or “Commission”), pursuant to 2 U.S.C. § 437g(a)(l), alleging that the solicitation practices of eleven selected corporations, in obtaining funds for their political action committees, contravened the prohibitions in section 441b(b). Alternatively, plaintiffs argued that if the Commission construed the relevant provisions of the Act to permit the corporate conduct challenged in the complaint, then those provisions of FECA violate the First and Fifth Amendment rights of the plaintiffs. Acting on a recommendation from the Commission’s General Counsel that there was no “reason to believe” the Act had been violated, the Commission, on December 13, 1979, unanimously voted to dismiss the complaint without further investigation and without an additional statement of reasons. On February 4, 1980, plaintiffs filed a four-count complaint for injunctive and declaratory relief in the district court, pursuant to section 437g(a)(9)(A), seeking review of the Commission’s dismissal of their complaint. The first count alleged that “corporate PAC solicitations of unprotected career employees are yielding donations which are not free and voluntary, and constitute corporate political contributions because they result from the employment relationship.” Plaintiffs maintained that because these solicitations violated the Act, the Commission failed to discharge its statutory duty to investigate; thus, the Commission’s dismissal was contrary to law. The second, third and fourth counts all alleged constitutional violations. Plaintiffs made clear in their complaint that they sought relief on their constitutional claims only if they were denied relief on the statutory count. Plaintiffs sought certification of the constitutional issues to this court pursuant to section 437h(a). On cross-motions for summary judgment on the statutory claim, the district court upheld the Commission’s dismissal of plaintiffs’ administrative complaint. The Commission had previously filed a motion to dismiss the constitutional counts for failure to state a claim upon which relief can be granted and for the further reason that plaintiffs lacked standing to sue. The district court denied the motion to dismiss and announced it would certify the three constitutional questions for this court’s en banc determination. The court found plaintiffs’ constitutional claims “neither frivolous nor so insubstantial as to warrant dismissal for failure to state a claim.” As to standing, the court concluded that each of the plaintiffs had made a threshold showing of injury in fact sufficient to satisfy Article III. The court further ruled that, although no corporate executive or administrative employee was party to the litigation, the plaintiffs possessed standing to assert vicariously the First Amendment rights of such employees. On January 12, 1981, plaintiffs noticed their appeal from the district court’s order upholding the Commission’s dismissal, D.C.Cir. Docket No. 81-1044. Section 437h(a) requires a district court to certify immediately all questions of the constitutionality of the Act. However, as this court recognized in Buckley v. Valeo, 519 F.2d 817 (D.C.Cir.1976) (en banc), it is undesirable to decide a constitutional issue abstracted from its factual context. Therefore, on January 8, 1981, the district court entered a consent order providing for discovery of facts concerning the solicitation practices of four of the eleven corporations named in plaintiffs’ administrative complaint. On April 27, 1981, the parties signed an agreement stipulating two hundred ten findings of fact. The district court, on June 3, 1981, certified the three constitutional questions and submitted as the record the findings of fact agreed to by the parties. This court gave the certified constitutional case a regular docket number, No. 81-1664. The Commission renewed in this court its motion to dismiss for lack of standing. This court sitting en banc consolidated the statutory appeal in No. 81-1044 with the certification of constitutional questions in No. 81-1664, deferred decision on the motion to dismiss until after argument, and expedited the two cases as contemplated by the Act. On October 26, 1981, this court issued a judgment in No. 81-1044 affirming the district court’s disposition of the statutory claim, thereby putting squarely in issue plaintiffs’ three constitutional challenges. 672 F.2d 894. III. STANDING The Commission contends initially that none of the plaintiffs possesses the “voter standing” section 437h(a) requires; accordingly, the plaintiffs are not eligible to invoke the expedited procedure. Second, the Commission argues that the plaintiffs have failed to meet the Article III “case or controversy” requirement. We reject both arguments and therefore deny the Commission’s motion to dismiss at the threshold. The text of section 437h states that these categories of plaintiffs may invoke the certification procedure: “[t]he Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President.” 2 U.S.C. § 437h(a). In Bread Political Action Committee v. FEC, - U.S. -, 102 S.Ct. 1235, 71 L.Ed.2d 432 (1982), the Supreme Court held that only parties who fit one of these three descriptions have recourse to the expedited, certification procedure. Accordingly, IAMA lacks the requisite statutory standing and must be dismissed as party plaintiff. The Commission maintains further that the “voter standing” Congress granted in section 437h(a) is confined to plaintiffs who put in issue their First Amendment rights qua voters. The individual plaintiffs, under the Commission’s analysis, lack standing to utilize section 437h; although each is an eligible voter, no individual plaintiff has raised an issue as to his or her right to vote. Rather, plaintiffs raise issues as union members, as corporate shareholders, and on behalf of corporate employees, not as voters. Only one decision has embraced this pinched construction of section 437h(a). In Martin Tractor Co. v. FEC, 460 F.Supp. 1017, 1019 (D.D.C.1978), aff’d on other grounds, 627 F.2d 375 (D.C.Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980), the court stated: [T]he individual plaintiffs do not sue in their individual capacities to protect their individual rights to vote or even to make contributions. They sue to vindicate a claimed right of their corporate employer to influence its employees ... to make voluntary political contributions. While the question is not free from doubt, the Court has concluded that this kind of derivative right was not the constitutional right of “an individual eligible to vote” which Congress considered “appropriate” for vindication in a special declaratory judgment action under § 437h, particularly where, under the statutory scheme there is an alternative process for resolution of the substantive issue in the context of a particular transaction .... In the case before us, plaintiffs did proceed under the “alternative process for resolution” of their challenges; they pursued a section 437g enforcement action. The district court removed the constitutional issues from the section 437g action and certified them to this court pursuant to section 437h. This is the proper mode of procedure for questions of the Act’s constitutionality arising in section 437g proceedings. California Medical Ass’n v. FEC, 453 U.S. 182, 101 S.Ct. 2712, 2717-19, 69 L.Ed.2d 567 (1981). Martin Tractor apart, we find no support for the Commission’s position that section 437h(a) qualifies voters to raise constitutional issues only in relation to their rights as voters. Neither the language of the statute (any eligible voter, all constitutional questions) nor its legislative history suggests an interpretation so constricted. We note further that the Commission’s view is difficult to reconcile with California Medical Ass’n v. FEC, 101 S.Ct. 2712 (1981), in which the Supreme Court adjudicated a section 437h challenge to a provision of the Act regulating trade association activity. In short, we reject the FEC’s severely limited voter standing delineation, disapprove Martin Tractor to the extent it adopted the Commission’s view, and hold that the plaintiffs who are “individuals eligible to vote” in federal elections have statutory standing to invoke the section 437h certification procedure. See California Medical Ass'n v. FEC, 101 S.Ct. at 2717 n.6 (1981); Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976). We are also satisfied that the individual plaintiffs have Article III standing to raise the constitutional claims. The union member plaintiffs allege that they suffer a relative diminution in their political voices — their influence in federal elections — as a direct result of the discriminatory imbalance Congress is alleged to have ordered in the 1976 FECA amendments; they further assert that a ruling declaring the amendments unconstitutionally discriminatory would likely redress their injury. Similarly, the stockholder plaintiffs allege that the use of “their” corporate assets to establish and support a PAC impinges upon their political freedoms; a ruling invalidating the authorizing statute would eliminate this asserted harm. These arguments are sufficient to establish the individual plaintiffs’ standing under Article III to assert their First and Fifth Amendment rights. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). However, no executive or administrative employees appear among the named plaintiffs. Those plaintiffs seek to assert vicariously alleged First Amendment rights of career employees to abstain from political expression. The Supreme Court has repeatedly cited the prudential limitation on standing that a plaintiff generally may assert only his own legal interests, and may not raise those of third parties. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Warth v. Seldin, 422 U.S. at 499, 95 S.Ct. at 2205 (1975). This prudential rule against the assertion of third-party claims is designed “to limit access to the federal courts to those litigants best suited to assert a particular claim,” Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608. Because the rule is not of constitutional dimension, the Court has recognized exceptions to it in a number of cases. See, e.g., Carey v. Population Services, Int'l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Moreover, it is clear that Congress may, by legislation, permit one who satisfies Article III requisites in his own right to assert vicariously the rights of third parties. Gladstone, Realtors, 441 U.S. at 100, 99 S.Ct. at 1608 (1979); Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206 (1976). We believe Congress did not wish to truncate the presentations of parties entitled to invoke the section 437h expedited, certification procedure. Therefore, we entertain the individual plaintiffs’ arguments with respect to the alleged First Amendment rights of career employees. See California Medical Ass’n, 101 S.Ct. at 2717 n.6 (1981) (“[Tjhis court has held [the grant of standing under section 437h] to be limited only by the constraints of Art. III of the Constitution .... ”); Buckley v. Valeo, 424 U.S. at 12, 96 S.Ct. at 631 (1976) (“It is clear that Congress, in enacting [section 437h], intended to provide judicial review to the extent permitted by Art. III.”). But cf. Bread Political Action Committee v. FEC, -U.S.-,-, 102 S.Ct. 1235, 1239, 71 L.Ed.2d 432 (1982) (In the context of considering who may invoke the expedited procedures of section 437h, the Court stated: “We do not assume the maximum jurisdiction permitted by the Constitution, absent a clearer mandate from Congress than here expressed.”). The plaintiffs allege that the infringement of executive and administrative employees’ right of political abstention leads to greater contributions to corporate PACs and, hence, to greater corporate PAC expenditures. This allegedly causes a relative diminution of the plaintiffs’ political voices, which is one of the asserted injuries they seek to redress in this litigation. Accordingly, we hold that the individual plaintiffs here are qualified to pursue all three constitutional challenges, including the claim that career employees are unconstitutionally exposed, by reason of the 1976 FECA amendments, to inherently coercive solicitations. IV. ANALYSIS A. Is the asserted imbalance between corporations and labor unions under the 1976 FECA amendments unconstitutional? The union plaintiffs claim that Congress, in the 1976 FECA amendments, restricted corporate and labor union PAC activity in an unequal and discriminatory manner, upsetting an alleged long-standing balance between corporations and labor unions, in violation of First and Fifth Amendment strictures. 1. Background of the 1976 amendments. Congressional regulation of corporate political activity began with the Tillman Act of 1907, wherein Congress prohibited corporations from making money contributions in connection with any federal election. Congress has strengthened this prohibition several times since in a continuing effort to free the political system of inordinate and improper corporate influence. It was not until the War Labor Disputes Act of 1943, however, that Congress brought labor unions within the reach of the prohibition. In 1971, Congress, in a major undertaking to reform the federal election laws, enacted the Federal Election Campaign Act. Congress dealt with corporate and labor union political activity in section 205 of the Act, a section originally offered as an amendment by Representative Hansen. Representative Hansen stated that the purpose of the amendment “is to codify the court decisions interpreting [18 U.S.C. § 610], and to spell out in more detail what a labor union or corporation can or cannot do in connection with a federal election.” The amendment “draws a distinction between activities directed at the general public, which [the courts have] prohibited, and communications by a corporation to its stockholders and their families, and by a labor organization to its members and their families, on any subject, which the courts have held is permitted.” As to the latter, to ensure that contributions are voluntary, the amendment prohibited the use of funds obtained by force, threat of force, job reprisal or discrimination, dues or fees, a safeguard now found at 2 U.S.C. § 441b(b)(3)(A). Representative Hansen concluded that the amended “Section 610 strikes a balance between organizational rights [of corporations and labor unions] and the rights of those who wish to retain their shareholding interest or membership status but who disagree with the majority’s political views.” In the debate over the Hansen amendment, Congress focused on the respective interests of organization and individual, not on any balancing of corporate and labor influence. Congress appeared satisfied that existing law conformed to the legislature’s wish to treat corporations and labor unions evenhandedly so that no alteration by FECA was required. Thus, as amended section 610 read when the Act became law in 1972, corporations were permitted to solicit contributions through their political action committees from their shareholders and their families, and labor unions were allowed to solicit contributions through their PACs from their members and their families. In the 1976 amendments, Congress added a corporation’s “executive or administrative personnel and their families” to those whom a corporate PAC may solicit. This alteration was a direct response to SUNPAC, an Advisory Opinion the Commission issued in 1975. In SUNPAC, the Commission ruled, inter alia, that a corporate PAC could, consistent with the Act, solicit all of the corporation’s employees as well as its shareholders. The debate in both Houses confirms that the single purpose of the alteration was to reject the sweeping SUNPAC interpretation and restore in large measure the balance thought to exist between corporations and labor unions prior to the Commission’s SUNPAC opinion. The House Bill, H.R. 12406, would have allowed a corporate PAC to solicit only its “executive officers” in addition to the corporation’s shareholders. Representative Thompson stated that the House amendment “specifically corrects the FEC’s erroneous interpretation” in SUNPAC. According to Thompson, SUNPAC “drastically modified the equitable balance which had been the national policy established during the 92d Congress.” The House Bill would “reestablish[ ] the congressionally determined balance between interests of the business community and its stockholders, and the interests of the labor community and its membership.” The House Report explicitly states that “[t]he Sun Oil [SUNPAC] opinion destroys the intent of the Congress to establish rules that apply equally to labor unions and corporations.” The House Bill proposed “three limited clarifications of the law,” all of them intended by the Committee to ensure even-handed treatment of corporations and labor unions. In allowing a corporate PAC to communicate with and solicit contributions from its “executive officers,” the Committee noted that it viewed “management personnel,” like stockholders, “to be among the beneficial owners of a corporation.” The main purpose of the bill was stated as follows in the House Report: H.R. 12406 continues the rule that unions may only solicit those they represent— their members — and reaffirms the intent of the 1971 Congress that corporations must also confine their activities to a roughly comparable group — namely, stockholders and executive officers The bill also provided that any method of solicitation or communication which the law permitted corporations must also be permitted labor organizations. The Senate Bill, S. 3065, employed the phrase “executive or administrative personnel” instead of “executive officers,” but in all other respects relevant here it tracked the House version. The Senate’s intent to overturn the broad SUNPAC ruling is clear from the treatment accorded two amendments to the bill offered by Senator Pack-wood on the Senate floor. Senator Pack-wood first introduced an amendment which “in essence, lets everybody solicit everybody in the corporation .... ” Specifically, his first amendment would have allowed a union PAC to solicit non-member employees and shareholders and, symmetrically, would have permitted a corporate PAC to solicit all of the corporation’s employees including union members. Senator Packwood acknowledged the amendment “pretty much, puts the situation back where the Federal Election Commission had left it with their rulings in the creation of what was known as the SUNPAC decision.” But he believed it treated labor unions and corporations “equitably.” The Senate, without debate, rejected this amendment, 40-45. Senator Packwood introduced next “the middle ground amendment,” a proposal which would have extended corporate and union solicitation to middle level employees. Conceding that strong labor opposition to the SUNPAC ruling justified some restrictions on corporate solicitation of employees, Packwood nevertheless pointed out that under the Senate Bill “nonsupervisory, nonu-nionized employees, who are half of the work force of the major corporations in this country, cannot be solicited by the union and cannot be solicited by the employer.” These middle level employees, Packwood urged, have a stake in what both corporation and labor union do that affects them, therefore both union PACs and corporate PACs should be allowed to solicit them. Other Senators expressed concern over the potential for coercion, actual and perceived, in permitting solicitation of these non-supervisory, non-union employees. Although Packwood attempted to assure his colleagues that coercion was illegal under present law and would remain so under his amendment, the Senate rejected this amendment, too, 33-47. Senator Dole, speaking of the provision concerning PACs just before the vote on the entire bill, stated, “Although the compromise reached with respect to solicitation of funds from employees may not be totally consistent with the SUNPAC decision, it probably also represents a fair settlement of the issue.” The substitute bill as reported out of conference employed the Senate language “executive or administrative personnel.” The Conference Report defined “executive or administrative personnel” as “employee[s] who [are] paid on a salary, rather than hourly, basis and who ha[ve] policymaking, managerial, professional, or supervisory responsibilities.” The Report explained further: The term “executive or administrative personnel” is intended to include the individuals who run the corporation’s business, such as officers, other executives, and plant, division, and section managers, as well as individuals following the recognized professions, such as lawyers and engineers, who have not chosen to separate themselves from management by choosing a bargaining representative; but is not intended to include professionals who are members of a labor organization, or foremen who have direct supervision over hourly employees, or other lower level supervisors such as “strawboss-es”. Concerning the balance Congress intended to restore in these amendments, the Conference Report contains only a passing reference to “the general rule inherent in the plan of the entire section — that unions insofar as they are employers,[] stand in the same shoes as corporations . Congress was not unaware, however, that the balance struck in 1976 was different from the one that existed prior to the SUNPAC ruling. In presenting the Conference Bill to the House, Representative Hays stated: The individuals ... whom a corporation may ... solicit[] for contributions to a political fund was broadened to include professional employees who are not represented by a bargaining agent and supervisory employees other than foremen who directly supervise rank-and-file employees. Representative Brademas concluded that Congress has restored the ante-SUNPAC balance “in a manner that is fair and evenhanded .... [I]f the word ‘fairness’ implies a balancing of rights, this bill represents an equitable balance between the rights of corporations and labor unions. It is the product of deliberation, negotiation and compromise.” In sum, our review of the relevant legislative history convinces us of two things: (1) Congress intended to overrule the SUN-PAC decision in substantial part and re-establish a balance similar, but not identical, to the one Congress codified in 1971; (2) there was a general consensus that the amendments achieved this purpose and did so equitably. 2. The alleged imbalance. Plaintiffs, in light of the legislative history just recounted, do not claim that Congress in 1976 intended to tip the balance in favor of corporations. Rather, they accuse Congress of lacking the prescience to comprehend the effect of unleashing corporate PACs to solicit career employees: an “explosive” growth both in the number of corporate PACs and in their influence in federal elections, disproportionate to that of union PACs. Plaintiffs cite the following figures and invite comparison. In 1975, 139 corporate PACs raised $5.8 million; 226 union PACs raised $18.5 million. By 1980, however, there were 1204 corporate PACs with a combined campaign chest of $34 million. The number of labor PACs increased in the same period only incrementally to 297; they raised $26 million. Plaintiffs estimate that 90% of corporate PAC funds are derived from executive and administrative employees. Plaintiffs’ figures do not inform us how many career employees were open to solicitation pre-1976 as shareholders. Nor, taking into account that labor union PACs just a few years ago were more prevalent, wealthier, and more powerful than corporate PACs, do plaintiffs entertain the possibility that the relative strength of corporate and labor PACs may swing pendulum-like in step with the political fortunes of the day. Plaintiffs demonstrate a connection in time (and argue a causal connection) between the SUNPAC ruling, the 1976 amendments, and the proliferation of corporate PACs. It is the statute, they argue — specifically the provision authorizing corporate solicitation of career employees — that “allows and invites a large and growing imbalance between corporate and union PAC funds.” Although plaintiffs recite a host of figures to dramatize this disparity, the imbalance of which they complain is not purely one of dollars and cents. Instead, the imbalance Congress is said to have created in 1976 is institutional, a matter of capacity, and thus outside the power of labor unions to correct. According to plaintiffs, there simply are many more major corporations (and many more career employees to be solicited) than there are major labor unions (and union employees ). Because most major corporations have not yet set up a political action committee, plaintiffs’ argument continues, the chasm between corporate and labor PAC funds promises to widen even more. Plaintiffs do not object, however, to the proscription on labor PAC solicitation of non-member union employees (or non-member corporate employees). Even if Congress drew the 1976 amendments in a facially equal manner (corporate and labor PACs may solicit their respective career employees; or corporate and labor PACs alike may solicit all corporate employees, regardless of union membership, and all shareholders), plaintiffs would still press their discrimination claim. In sum, the union plaintiffs challenge here congressional action that frees corporate PACs to amass funds that labor union PACs allegedly could not attract even if they were permitted to try. 3. The standard of review. The union plaintiffs argue that the 1976 amendments, which authorize labor PACs to solicit their members but which authorize corporate PACs to solicit their career employees in addition to their shareholders, violate the equal protection component of the Due Process Clause of the Fifth Amendment. They argue conjunctively that this disparate treatment violates their First Amendment rights. Urging linked consideration of these two constitutional safeguards, plaintiffs rely on decisions focused on the “intersection” of equal protection and First Amendment guarantees, most notably, Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). They maintain that the 1976 amendments must be scrutinized strictly and assert that the Commission has not adequately justified the amendments’ disparate impact on corporate and labor PACs. While heightened scrutiny often attends a legislative classification alleged to impinge on First Amendment interests, we reject plaintiffs’ argument that the most stringent review standard should apply in this case. Decisions in point may lack perfect consistency and crystal clarity, but they do reveal that the nature and quality of the legislative action at issue determine the intensity of judicial review of intertwined equal protection, First Amendment claims. We note in that light that the particular congressional action plaintiffs assail does not encroach directly or, on its face, place limits on any individual’s speech or participation in the electoral process. In this respect, neither Mosley, involving an ordinance allowing one group, but not others, to picket, nor Buckley v. Valeo, involving limitations on campaign contributions and expenditures, nears plaintiffs’ mark. Moreover, we underscore again that plaintiffs do not seek for union PACs the permission Congress granted corporate PACs to solicit career employees. Rather, plaintiffs want to tighten or reinstate a governmental limitation on political activity, i.e., they would preclude corporate PACs from soliciting career employees, in order to maintain a balance between electoral messages spread by corporations and those spread by unions. Mosley itself enunciated review standards that were not the most exacting, and Buckley v. Valeo drew distinctions bearing on the rigorousness of review based on the character of the several legislative proscriptions the Court scrutinized. See, e.g., 424 U.S. at 95-96, 96 S.Ct. at 671. We are therefore confident that the matter before us does not call for a review standard more demanding than this elevated, but not strictest, test: the challenged legislative action must bear a substantial relation to an important governmental interest. 4. The governmental interest Plaintiffs phrase their objection to the 1976 amendments in terms of the ends Congress may have sought to achieve by permitting corporate PACs to communicate with and solicit executive and administrative employees. But their objection is more appropriately addressed to the means Congress chose to serve an indisputably important governmental interest: impartial FECA treatment of corporations and labor unions. It confounds means and ends scrutiny to demand, as plaintiffs do, that Congress explicate a substantial government interest in adding career employees to the pool of permissible corporate solicitees. As developed earlier the 1976 amendments at issue were designed to restore a balance to FECA’s treatment of corporations and labor unions, a balance the Commission in its SUNPAC ruling had upset. It is true that the balance Congress struck in 1976 differs from the one arrived at in 1971. But the goal of Congress has remained the same. Thus, whether the 1976 amendments survive constitutional review turns on the degree of precision with which Congress has achieved its unquestionably proper purpose: does the legislative scheme of section 441b(b)(2), as amended in 1976, bear a substantial relation to the important governmental interest in applying the federal election laws even-handedly to labor unions and corporations? 5. Means scrutiny: to what extent are corporations and labor unions similarly situated for the purpose at hand? Congress apparently did not consider the difference in capacity between corporate and labor PACs when it framed the 1976 amendments. But, as we observed earlier, no disparity in favor of corporations existed in 197 Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
sc_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. RICHARD S. v. CITY OF NEW YORK No. 1478, Misc. Decided April 20, 1970 Jonathan A. Weiss for appellant. J. Lee Rankin, Stanley Buchsbaum, and Robert T. Hartmann for appellee. Per Curiam. The motion for leave to proceed in forma -pauperis is granted. The judgment is vacated and the case is remanded to the Court of Appeals of New York for further consideration in light of In re Winship, ante, p. 358. The Chief Justice and Mr. Justice Stewart dissent for the reasons set forth in the dissenting opinion of The Chief Justice in In re Winship, ante, p. 375. Mr. Justice Black dissents for the reasons set forth in his dissenting opinion in In re Winship, ante, p. 377. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_casetyp1_7-2	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". UNITED STATES v. BARTON. No. 9315. Circuit Court of Appeals, Fifth Circuit Feb. 10, 1941. George Earl Hoffman, U. S. Atty., of Pensacola, Fla., for appellant. Wm. Joe Sears, Jr., of Jackonsville, Fla., for appellee. Before SIBLEY, HOLMES, and Mc-CORD, Circuit Judges. HOLMES, Circuit Judge. Henry Barton was issued a policy of war risk insurance during his military service in 1918. In 1925, he converted it' into a twenty-year endowment policy of Government life insurance in the amount of $5,000. This contract was kept in force until January 1, 1936, when Barton claimed to have become totally and permanently disabled. This appeal presents questions involving the propriety of certain proceedings on the trial and the correctness of the court’s denial of the Government’s motion for a dirécted verdict. If, when all the evidence was construed most favorably to Barton, there was any substantial evidence upon which the 'jury might properly have found for him, the motion for a directed verdict was properly denied. Viewing the evidence in accordance with this rule, the proof clearly made out a case for jury determination. During several years preceding 1933, Barton,pursued various occupations, principally clerical. In the summer of 1933, he quit his work in a general store, because the onset of various ailments considerably impaired his health. Since that time, Barton has followed no occupation other than speculating or investing in the stock market. On January 1, 1936, when the disability was claimed to exist, the appellee was suffering from chronic bronchitis, bronchial asthma, allergic rhinitis, under nutrition, functional neurosis, chronic spastic colitis, hemorrhoids, secondary anemia, myopia, and decayed teeth. Shortly thereafter, he was discovered to have paralysis agitans, with which he was afflicted on January 1, 1936, and which was recognized to be an incurable disease. Two qualified physicians testified that Barton’s condition was such that any attempt by him regularly to follow any gainful occupation would result in injury to his health, and that his condition, which had steadily grown worse for five years, would continue so to do. Lay witnesses closely acquainted with Barton testified that these illnesses noticeably reacted adversely upon his health. Taking the evidence at its best for the plaintiff, certainly the jury could properly find that Barton was totally and permanently disabled on the date claimed. Procedural errors occurring in the trial of a suit are not sufficient to require a reversal unless the appellate court is of the opinion that such errors affected the substantial rights of the parties. We are not satisfied that any of the errors complained of seriously prejudiced the appellant or induced a clearly erroneous verdict. The procedural improprieties complained of were not serious in their most violent form, and each of them was mitigated into harmlessness by corrective action taken before the submission of the cause. Affirmed. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; United States v. Fancher, 5 Cir., 84 F.2d 306; Thomas v. United States, 5 Cir., 92 F.2d 929; Southern Steamship Co. v. Meyners, 5 Cir., 110 F.2d 376; Commercial Casualty Co. v. Stinson, 6 Cir., 111 F.2d 63, 64; Farris et al. v. Interstate Circuit, Inc., 5 Cir., Jan. 3, 1941, 116 F.2d 409. Thomas v. United States, supra; United States v. Martin, 5 Cir., 54 F.2d 554; Keelen v. United States, 5 Cir., 65 F.2d 513. 28 U.S.C.A. § 391; Gilmer v. Higley, 110 U.S. 47, 3 S.Ct. 471, 28 L.Ed. 62; Seaboard Airline Ry. v. Moore, 228 U.S. 433, 33 S.Ct. 580, 57 L.Ed. 907; Morris Land & Cattle Co. v. Kilpatrick, 5 Cir., 256 F. 788. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Jay MORTON, Plaintiff, Appellant, v. Jack W. BROWNE, Defendant, Appellee. No. 7662. United States Court of Appeals, First Circuit. March 5, 1971. William W. Bailey, Charlotte Amalie, Y. I., with whom Bailey, Wood & Rosenberg, Charlotte Amalie, V. I., was on brief, for appellant. Victor M. Domenech Pico, San Juan, Puerto Rico, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. PER CURIAM. Although this case involves only $6,000, it has been carried on with such a plethora of motions, counter-motions and orders that the finally amended complaint itself is already item No. 35 on the docket. The court’s memorandum granting summary judgment for the plaintiff is item No. 84. No such multiplicity of work seems to us to have been necessary. By a paper filed July 14, 1967 plaintiff disclosed that he was relying, inter alia, upon the fact that his $6,000 advance in connection with his becoming a member of the joint venture would be used to insure, as well as to outfit, the M/V SHRUB, and was so represented to him by the defendant. By his disposition plaintiff gave such testimony, indicating not only defendant's representation to this effect, but his acknowledgement of the receipt of the money. Defendant did not take out insurance, and the vessel was lost. In April 1969, when plaintiff’s motion for summary judgment came on for hearing, the court gave the defendant 14 days to file counter-affidavits and a memorandum. Defendant filed some papers with respect to a mortgage (a matter we need not pursue), but no factual affidavits. Instead, he filed a memorandum of counsel, the presently pertinent part reading, “[Tjhere are many issues of fact presented by the pleadings * * *. [W]here there are contested questions of material facts, summary judgment must be denied. 28 U.S. C.A. Rule 56 page 382 et seq.” The page reference makes clear that counsel was referring to the 1948 enactment of F.R.Civ.P. 56, which has been interpreted by the Third Circuit, the First Circuit contra, as permitting reliance upon the pleadings to show that facts are “contested” within the meaning of this rule. By the 1963 amendment of Rule 56(e) this construction was expressly rejected and is no longer open in any circuit. Counsel’s failure to adopt the court’s offer to receive counter-affidavits in 14 days means, therefore, that plaintiff’s testimony and affidavit stand uncontradicted and, whether or not they are true in fact, under the plain provisions of the Rule are now no longer contradictable. The court’s opinion, insofar as it recognized a duty on the part of the defendant to the plaintiff to insure the vessel because of the undertaking in the charter party itself, seems misplaced. This was a duty assumed in favor of the vessel owner. However, defendant’s representation that plaintiff’s $6,000 would be used to acquire insurance on the vessel became a binding promise to the plaintiff, effecting a duty to insure (or else to return the money if insurance was unobtainable) upon defendant’s receipt thereof. This, as the district court said, stands uncontradicted. The judgment of liability must stand. With respect to damages, defendant properly points out that there is no specific evidence in the record that had the vessel been insured there would have been a payment received by the plaintiff as assignee of the mortgage in the amount of $6,000. We believe that the inference was open. However, we authorize the district court to entertain further proceedings, on the matter of damages only, if defendant, with reasonable promptness, makes a substantial showing that plaintiff would not have obtained a recovery in that amount. The judgment of the district court is affirmed, subject to further proceedings consistent with this opinion. The district court is reminded that it can make no changes that do not have our permission. Wilson Research Corp. v. Piolite Plastics Corp., 1 Cir., 1964, 336 F.2d 303. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_constit	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Clifford A. HOURSTON, doing business as Southern Cross Engineering and Foundry Works, Appellant in No. 71-1931, v. HARVLAN, INC., Appellant in No. 71-1932. Nos. 71-1931, 71-1932. United States Court of Appeals, Third Circuit. Argued Jan. 27, 1972. Decided March 28, 1972. Harry E. Woods, Santurce, for appellant. Russell B. Johnson, Christiansted, St. Croix, V. I., for appellee. Before SEITZ, Chief Judge, ALDISERT and GIBBONS, Circuit Judges. OPINION OF THE COURT SEITZ, Chief Judge. This is an appeal by Harvlan, Inc. (“defendant”) from a district court judgment entered on a jury verdict awarding $40,000 to Clifford A. Hour-ston (“plaintiff”) as a finder’s fee. A previous jury had awarded plaintiff $50,000 which was set aside and a new trial ordered. On cross-appeal plaintiff challenges the new trial order and seeks reinstatement of the original verdict. We have decided that the judge presiding over the first trial abused his discretion in granting defendant’s motion for a new trial. Therefore, only the events of that first proceeding as they related to the court’s order need be evaluated. The five grounds given by the court in support of its new trial order will be treated seriatim. Preliminarily, however, we note that this Circuit varies the standard controlling a review of an order granting a new trial in accordance with the particular ground which the trial court adopts for its decision. Thus we have stated that on appeal a broad discretion should be recognized in the trial court when its order granting a new trial is based on its conclusion that evidence was improperly admitted or that prejudicial statements were made by counsel. See Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960). If the order rests on the court’s belief that the verdict was against the weight of the evidence, however, closer scrutiny is required by us on review. This is especially true when, as here, “the litigation deals with material which is familiar and simple, lying well within the comprehension of [the] jurors. . . .” Id. at 91. See Grove v. Dun & Bradstreet, Inc., 438 F.2d 433, 438 (3d Cir. 1971). (1) THE EVIDENCE AS A WHOLE PREPONDERATED IN FAVOR OF THE DEFENDANT The appropriate test to be applied by the court in considering defendant’s motion for a new trial was not whether the evidence “preponderated” in favor of one party or another. Rather, the court was required to decide whether sufficient evidence existed on the record which, if accepted by the jury, could sustain the verdict. As we noted in Lind v. Schenley Indus., Inc., 278 F.2d 79, 91 (3d Cir. 1960), any other standard would permit the trial court to substitute its judgment for that of the jury. We now consider the evidence to determine whether the district court, under the proper standard, might permissibly have granted a new trial. The dispute between the parties concerns essentially two issues of material fact: (a) whether, pursuant to the parties’ non-exclusive brokerage agreement, defendant was obligated to compensate plaintiff for plaintiff's efforts in causing the Venezuelan group, Central la Pastora (“Pastora”), to purchase defendant’s mill; and (b) if so, what percentage of the $500,000 purchase price was agreed upon as commission. As to issue (a) it was admitted by defendant that early in 1966, Louis Warsehaw as president of defendant contacted plaintiff and requested that plaintiff attempt to locate a purchaser for defendant’s Bethlehem sugar mill (“Bethlehem”). Plaintiff testified that on February 17, 1966, in response to this request, he mailed to numerous prospective purchasers including Pastora a flyer listing and briefly describing Bethlehem and several other sugar mills then for sale. Witnesses representing Pastora testified to having received this flyer. In accordance with alleged broker practice under non-exclusive arrangements the identities and locations of the listed facilities were not disclosed. Pastora therefore responded to plaintiff with a request for further details relative to Bethlehem. Upon receipt of this response plaintiff registered Pastora with defendant as a prospective purchaser. This procedure admittedly conformed with the parties’ brokerage arrangement. According to plaintiff’s uncontradicted testimony it had been agreed that by registering an interested buyer plaintiff’s commission would be protected in the event that his prospect ultimately purchased Bethlehem. Plaintiff was not required to participate in the actual negotiations. Rather, defendant itself retained this responsibility. After registering Pastora as a prospect plaintiff made a written reply to Pastora’s request for further information. This reply was delayed until plaintiff personally completed an inventory of Bethlehem. However, pending completion he spoke with Pastora officials by phone, disclosing Bethlehem as the mill in which they were interested and instructing them to contact officials of defendant directly. Personal contact was thereafter made and the sale of Bethlehem was consummated. Much of plaintiff’s testimony was corroborated by documentary evidence. Also, except for one matter discussed subsequently, it is not contended that even if plaintiff’s testimony were believed by the jury, nevertheless he failed to establish a prima facie ease as to his right to receive a commission. We conclude that the plaintiff’s uncon-tradicted evidence warranted the jury’s finding that plaintiff was the procuring cause of defendant's sale of Bethlehem to Pastora. The first trial judge, by substituting his evaluation of the evidence for that of the jury on this issue, abused his discretion. Cf. Lind v. Schenley, supra at 91. We reach the same conclusion insofar as the trial court decided that the award of $50,000 was against the weight of the evidence. Here again there was testimony by plaintiff that defendant had promised him a commission of 10% of the sale price if that figure ranged between $500,000 and $600,000. We cannot agree with defendant’s position that this testimony was rendered inherently incredible by reason of its apparent inconsistency with plaintiff’s letter to defendant purporting to confirm their commission arrangement as to amounts equal to or in excess of $600,000. (2) PLAINTIFF PRODUCED NO MORE THAN A SCINTILLA OF EVIDENCE THAT HE WAS THE PROCURING CAUSE OF THE SALE OF BETHLEHEM TO PAS-TORA If the district court was correct on this ground, it would seem that it should have granted defendant’s motion for judgment n. o. v. But the short answer is that while a mere scintilla is not enough, we think plaintiff carried his burden of producing sufficient evidence of procuring cause to create a jury issue. See Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720 (1930). See also McVay v. American Radiator & Sanitary Corp., 1 F.R.D. 677, 678 (W.D.Pa.), aff’d 119 F.2d 593 (1941). Most important is the undisputed testimony that plaintiff’s February 18th flyer preceded by a month or more any contact with Pastora by others purportedly authorized to act on behalf of Bethlehem. Defendant contends that the date determinative of plaintiff’s right to a commission is April 11, 1966, when he registered Pastora with defendant, and that documentary evidence irrefutably demonstrated that Warner, the broker ultimately awarded the finder’s fee for locating Pastora, had introduced the Venezuelan group to defendant’s officials prior to this date. Even if we accept April 11 as controlling with regard to plaintiff’s case, defendant’s exhibits do not conclusively establish that Warner rather than plaintiff should have received the non-exclusive commission. Specifically, defendant points to four letters introduced at trial. Each purports to be correspondence from Warner to particular officials of defendant alluding to the interest of Pastora in purchasing Bethlehem. Three of the four letters predate plaintiff’s registration of Pastora with defendant. In the earliest, dated March 30, 1966, Warner notified defendant that he had been in touch with a party wishing to negotiate regarding Bethlehem. The identity of the party is undisclosed, however. Next, in the letter of April 8, Warner alerted defendant’s general manager that he and at least one other person would inspect Bethlehem on April 30. Again, Warner does not reveal who would be with him. The third letter dated April 9, is from Warner to the president of defendant discussing several used sugar mills then for sale and noting again Warner’s proposed visit to Bethlehem on the 30th. According to the letter Warner would be accompanied by “two friends.” Thus, none of these alleged “conclusive” exhibits purported to reveal to defendant that Warner’s interested purchaser was Pas-tora. If the jury’s implicit finding that plaintiff was the procuring cause of Bethlehem’s sale to Pastora necessarily turned on registration per se, therefore, we cannot conclude that this finding was not supported by plaintiff’s evidence. A Pastora official did testify that in fact he accompanied Warner on the April 30 inspection noted by defendant’s exhibits. However, the official could not support his testimony by any reference to a contemporaneous immigration stamp on his passport. Indeed, even if his testimony were believed it would not demonstrate that defendant was aware, prior to the plaintiff’s registration of Pastora on April 11, that Pastora also was purportedly the client Warner sought to have inspect the mill. In view of the record, therefore, we cannot agree with the district court that plaintiff failed to produce more than a scintilla of evidence that he was the procuring cause of the sale of Bethlehem to Pastora by defendant. (3) PLAINTIFF’S CHARGE OF CONSPIRACY RESTED SOLELY ON INNUENDO AND WAS UNSUPPORTED BY ONE IOTA OF SWORN TESTIMONY This ground for the court’s order condemned the references by plaintiff’s counsel to a conspiracy between Warner, who allegedly was acting merely as a straw man, and Bethlehem and Pastora. According to the trial judge such references were supported only by innuendo arising from the cross-examination by plaintiff’s counsel of the defendant’s witnesses. The “innuendo” did not emerge solely from the phraseology of counsel’s leading questions, however. Defense witnesses expressly acknowledged that at the negotiations a representative of Pastora suggested to the president of Bethlehem that the sale price might be reduced if a rebate or kickback of the broker’s commission could be obtained. It was maintained that the “suggestion” was made only as a joke. But, whether in fact it rose no higher than a joke in the minds of the negotiators was for the jury to determine. Therefore, we conclude that the court erred in basing its order on this ground. (4) THE COURT ERRED IN PERMITTING ARGUMENT OF CONSPIRACY AND PLAINTIFF’S COUNSEL COMMITTED PREJUDICIAL ERROR BY REFERENCES TO MATTERS DEHORS THE RECORD The conclusion that no argument of conspiracy should have been allowed turned apparently on the court’s belief either that the existence of such a conspiracy was irrelevant to a determination of plaintiff’s right to a commission or, in the alternative, that such references suggested a potential for prejudice to defendant which outweighed any relevancy a finding of conspiracy by the jury might otherwise possess. The record indicates, however, that the court explicitly instructed the jury to disregard any allusions to a conspiracy made either at trial or during counsel’s closing argument. In view of this instruction we feel that the prejudice, if any, which may have occurred was at best de minimis. Cf. Harkins v. Ford Motor Co., 437 F.2d 276, 278 & n.6 (3d Cir. 1970). (5) THE INTERESTS OF IMPARTIAL JUSTICE DEMANDED A NEW TRIAL Only this ground and that part of the fourth ground noting counsel’s “impassioned references to matters dehors the record” remain to support the court’s order. This ground, however, must fail for lack of specificity. See id. at 277. Neither the order nor defendant’s memorandum attached to its motion detail record support for the court’s conclusion that a new trial was mandated in the interest of “impartial justice.” Specificity is suggested in defendant’s memorandum for the court’s observation that plaintiff’s counsel prejudiced defendant’s ease by referring to matters dehors the record. But, even if the acts and comments ascribed to plaintiff’s counsel occurred as described, we are still left unconvinced that his conduct was so egregious as to justify a new trial. Indeed, on this record counsel's conduct appears singularly restrained. CONCLUSION The grounds relied upon by the district court, whether considered separately or cumulatively, fail to support its order granting defendant’s motion for a new trial. The district court order of September 11, 1969, to the extent that it granted a new trial, will be vacated and the $50,000 verdict resulting from the first trial will be reinstated and judgment in favor of the plaintiff will be entered thereon as of the date of the jury verdict, April 17, 1969. The judgment of the district court filed March 27, 1971, on the verdict entered in the second trial, will also be vacated. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. 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: What is the total number of appellants in the case? Answer with a number. Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. MEYERS v. UNITED STATES and three other cases. Circuit Court of Appeals, Third Circuit. November 20, 1929. Rehearing Denied December 26, 1929. Nos. 4088-4091. John M. Henry and Arthur F. Schmidt, both of Pittsburgh, Pa., for appellants. John D. Meyer, U. S. Atty., and Jos. A. Richardson and Ralph H. Smith, Asst. U. S. Attys., all of Pittsburgh, Pa. Before BUFFINGTON, WOOLLEY and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. The defendants-appellants were convicted under one of several indictments drawn to conform to the court’s finding in United States v. Abbott, stated and discussed in United States v. Wills et al., 36 F.(2d) 855, where the government alleged and tried to prove one large comprehensive conspiracy entered into by seventy-three persons to violate the National Prohibition Act in the City of Pittsburgh but proved instead several small conspiracies embracing groups of the same defendants. The. indictment with which we are presently concerned was directed against a • group of thirty-five persons, defendants in the Abbott Case, who by its four counts were charged with conspiracy to sell, manufacture, possess and transport intoxicating liquor in violation of the law. When the case came on for trial the government found itself still confronted by some of the practical and legal difficulties which it encountered in the trial of the Abbott Case. In a further effort to conform its action to the decision in that ease, the government, for want of sufficient evidence, entered a nolle prosequi as to eleven defendants and yielded to a plea in bar filed by another defendant. At the close of the case the court, on motions both by the government and certain defendants, directed verdicts of acquittal as to nine others. Finally the case was submitted as to seven defendants and the jury, by their verdict, found two not guilty and five guilty, including the four defendants here on appeal. In the course of the trial the evidence of many witnesses proved, as the appellants themselves admit, that they had been extensively engaged in the sale of liquor over that portion of Pittsburgh known as the “South Side,” but they point out that the offenses charged against them were conspiracies to violate the aet, not violations of the act itself, and urge that the conspiracies charged by this indictment, though purporting to be one of the small group conspiracies revealed in the Abbott Case, were not proved, but that, as in the Abbott Case, the government proved several still smaller and wholly unrelated conspiracies and therefore, under the law of the Abbott Case, United States v. McConnell (D. C.) 285 F. 164; Wyatt v. United States (C. C. A. 3d) 23 F.(2d) 791; and Coco v. United States (C. C. A.) 289 F. 33, the convictions cannot be sustained. There is no question about the law. The only question is whether it applies to the facts. What happened was this: Taking as an example the count charging conspiracy to sell, and for convenience speaking of the conspiracies in the singular number, the allegations of the conspiracy were in the usual form, supplemented by a recital of overt acts specifying the parts whieh in some measure the several defendants played in the conspiracy. Keeping in mind that the essence of a conspiracy such as this is the unlawful agreement to violate a law, not its actual violation, and that the overt act required by section 37 of the Criminal Code (18 USCA § 88) and additional overt acts when pleaded are not parts of the crime, it may be that the overt acts stated in this ease did not tell the whole story of the conspiracy; nor did they have to, for it is certain the government was not restricted to them in proving the conspiracy if properly pleaded in the indictment. Nor, it may be, did they tell the story with accuracy in details. The government was not required to prove the conspiracy precisely as indicated by all of the overt acts stated. Infirmity in one act did not nullify the strength of all others. It was of course bound to prove the conspiracy as pleaded, and as pleaded with at least one overt act. Certainly it could prove acts in addition to those stated and omit to prove some which were stated if still it proved the conspiracy alleged in the count, supported, as it must be, by a statement of one or more overt acts which implicated and connected the several conspirators. It developed early in the trial that the conspiracy centered on the three Meyers and Swift. There can be no doubt that the government tightly proved the complete conspiracy between them. In doing so, however, it failed to connect some of the other defendants with them, for lack of evidence, or because of the nolle prosequi entered, plea in bar granted and directed verdicts of acquittal rendered as to others — all done without an objection by any defendant. These appellants now say that the government’s failure to connect the other defendants with them was fatal because the change in the personnel and number of defendants, thus effected, amounted to an amendment to the indictment — in transitu, as it were — without the intervention of a grand jury. Eor reasons too plain to discuss we find no merit in this contention. Nor do we find that the appellants can escape conviction for the conspiracy whieh was proved as to them because the government failed to connect with them the other defendants who dropped out of the case in one way or another. It is evident that here, as in.the Abbott Case, the government tried to prove too much and failed in its effort to connect every defendant with every other defendant but it did not fail to prove the Meyers brothers and Swift guilty of the conspiracy charged. In other words, the fabric of the conspiracy frayed out at the edges but the body remained. While we have followed the wanderings of the evidence in the light of the appellants’ argument, we shall not repeat or discuss them here. We shall do no more than hold that this is not the Abbott Case where one conspiracy was charged and others proved, but is a case where one conspiracy was charged and, as to certain defendants, proved and as to others not proved. There was, therefore, no variance, United States v. Wills, 36 F.(2d) 855; there was a mere failure of proof as to related complicity of certain defendants with the defendants who were convicted upon the charge against them. The ease therefore falls outside the law which the appellants have invoked and to whieh we adverted at the beginning of this discussion. The next question — “whether the government may produce evidence not set forth in its Bill of Particulars” — seemed serious until it was discovered that there was no bill of particulars within the legal meaning of that term. Before trial, sixteen of the defendants, including the appellants, filed petitions, each of which was entitled “Petition for Bill of Particulars” and concluded with a prayer that the court “require the United States Attorney to give a more particular description, in the nature of specifications or a Bill of Particulars, of the acts upon which he intends to rely.” Pursuant to the court’s order to that effect the government filed a long and elaborate statement involving many persons and touching many acts whieh it entitled “Bill of Particulars” but whieh is more accurately described by the opening sentence, as follows: The United States Attorney, “in compliance with the order of court entered in the above entitled ease, * * * amplifies with particularity the overt acts of the indictment so far as the facts are at the 'time of the filing hereof known.” The paper is what it described itself to be — an amplification of the overt acts. The facts it státes are but additional overt aets and are accorded no greater legal effect and fall under no different rule of evidence than if they had ,been first stated in the indictment. What we have said in respect to the proof of overt aets stated in or omitted from an indictment applies equally to overt aets brought into the ease in this way. The appellants’ next contention — one to which we haye given serious thought — is as follows: “Whether the United States may introduce evidence of transactions subsequent to the date^ of the finding of the indictment, the time of the conspiracy pleaded in said indictment being between September 1, 1925, and the date of finding the indictment, June 9, 1928, when it also appears that a bill of particulars had been filed and the particular acts set forth were confined to this period, and it further appears that the testimony is introduced from witnesses whose names axe not set forth in the bill of particulars.’’ . Having regarded the so-called bill of particulars merely a? an amplification of the overt aets of the indictment and having stated the rule of evidence applicable to overt aets, our answer to the question which the appellants have raised will be restricted to that part which inquires “whether the United States may introduce evidence of transactions subsequent to the date of the finding of the indictment.” Ia this connection dates are pertinent. The counts charge conspiracies continuing from September 1, 1925, to the date of finding the indictment which was June 9, 1928. The trial began on February 25 and closed on February 28, 1929. The witness Buziko, having discontinued the business of butcher, equipped and opened a bar room. His testimony on the point in issue was as follows: “Q. During 1926, ’27, ’28, did you sell any liquor at the bar? A. Yes, sir. “Q. What kind ? A. Moonshine. - * * * “Q. Front whom did you buy your moonshine? A. Meyers. * * * “Q. How many months did you buy from Meyers? A. Well, I ran it about six months before I ever started to sell moonshine. Then I started with Meyers and kept on with Meyers. * * * “Q. Now what business did you have with Miekey (Meyers) in connection with this? A. Miekey delivered and collected. * * * “Q. How did you first come to do business with Mickey? A. Jimmy Swift took me. * * * “Q. “When Jimmy Swift came to your place what did he say to you? A. I should buy stuff off of Meyers. “Q. Well, why — Did you ask him? A. I said I did not have to buy off anybody, and he said that everything would be O. K., and I started to sell. * * * “Q. After Jimmy told you it would be all right to buy it from them, what else happened before you got the delivery? A. Then I got the delivery. * * * “Q. To whom did you give your order? A. Well, Jimmy sent up two cans after that. “Q. And who collected for the first two cans? A. Miekey delivered and Mickey collected. * * * “Q. Then after you first started to do business with Mickey did you deaf with him regular? A. Yes, sir. “Q. How long did you continue to do business with them? A. With them? “Q. Yes, with Meyers? A. Oh, pretty near every week. “Q. And when was the last time you bought any from Meyers? A. About three weeks ago. “Q. That is what month? A. February, I believe — first part of February. * * * “Q. Did anybody ever collect from you besides Miekey? A. No, sir.” The witness Nitoski, who kept a restaurant on the “South Side,” testified as follows: “Q. During 1926, ’27, and ’28, did you sell any liquor at your restaurant? A. Yes. # * 4* “Q. After you stopped with Butseh, from whom did you buy next? A. I started to buy from Miekey. “Q. From whom? A. From Mickey Meyers. “Q. When was it you started to buy from Miekey Meyers? A. One time he came up to my place, if I needed any moonshine, and I said yes, and that is the way we started to deal. * * * “Q. Who collected for the stuff you ordered from Miekey? A. Miekey. * * * “Q. When was the last time you bought any stuff from Mickey? A. Oh, before— maybe four months ago, or five months ago. “Q. Was that before Christmas or after Christmas ? A. About six months ago, since I got that subpoena, I quit, I didn’t get— “Mr. Coll: Wait a minute, I object to proof of any sales or acts after the finding of the bill of indictment. “The Court: What can you say about sales after the finding of the indictment, Mr. Smith ? “Mr. Smith: If competent at all, your Honor, it is competent to prove guilty knowledge and continuing of the system. (Objection overruled. Exception noted to defendants.) “Q. When was the last time? A. Since I got that first subpoena, I from that time quit. “Q. I didn’t get that? A. Since I got that first subpoena, last Jwne. “Q. Did you buy any after that? A. No.” The witness Saling, long a bartender for others, opened his own bar in December, 1928. He was promptly raided. He was then told by a policeman (Coyne) that if he wanted to do business he would have to buy liquor from Meyers. Jimmy Swift called upon him and put him in touch with Meyers from whom, thereafter, he made weekly purchases, the liquor being delivered by unknown persons and collections made by Mickey and Sam Meyers. The objectionable testimony follows: “Q. And when was the last time you got a delivery of either moon or good stuff from Meyers? A. The last time — You mean moonshine? “Q. Yes. When was the last time you got any moonshine from them? A. Last week. “Q. What? A. Last week. “Q. What day? A. That was Tuesday. “Mr. Coll: That is objected to, if your Honor please — anything after the time of the indictment. “Mr. Smith: It is being offered on the part of the government as. being competent to prove guilty knowledge, system, motive and intent. “The Court:” You mean, coming from the same place? “Mr. Smith: Yes. (Objectionoverruled, exception noted to defendants.) “Q. How much did you get last Tuesday? A. One can. “Q. Has it been collected for? A. Yes. “Q. Who collected for it? A. One of the Meyers. “Q. Which one? A. One of the brothers (identifying Samuel Meyers). * * * “Q. Now from the date when you first bought from Meyers until last Tuesday have you dealt with them regular? A. Yes. Q. And about how often would you get a delivery of moonshine? A. Once a week.” Whether or not the admission of evidence of sales subsequent to the indictment was error justifying reversal because prejudicial depends upon a variety of circumstances, the first of which is the effect of the evidence in proof of the crime alleged. Had the crime alleged been a violation of the National Prohibition Act by unlawful sale, the admission of evidence of sale after the indictment to prove violation of the act by sale before indictment would have been plain error, fundamental, prejudicial, reversible. Thompson v. United States (C. C. A. 3d) 283 F. 895, 898; Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 42 L. Ed. 1162; Commonwealth v. Nailor, 29 Pa. Super. Ct. 271, 273; 31 C. J. 841, 843. But the crime here alleged was conspiracy to violate the law. The act of conspiring — agreeing, combining, breathing together in a common design — being the essence of the crime, must be proved to have been done and completed within the time pleaded in the indictment. This the government did in the case at bar by evidence which in itself was more than enough and was not contradicted. Though this evidence alone compelled conviction, the government went further in the three instances named and proved not that the appellants entered into the conspiracy after the finding of the indictment but that after the indictment they sold liquor. We are not convinced that the government’s attorney, at first brought out this post-indictment testimony purposely, for it came out in answer to a perfectly proper question — “When was the last time you bought any (liquor) from Meyers?” — and Ihe answer seemed to surprise him. As the question was first asked and answered without objection, the United States Attorney, seemingly encouraged to push the inquiry, twice repeated the question to other witnesses. This, if not technical error, was unwise. Moreover 'the grounds on which the United States Attorney offered and the court admitted the testimony in the last two instances are not sound. They are: “If competent at all, your Honor, it is competent to prove guilty knowledge and continuing of the system.” “It is being offered on the part of the government as being competent to prove guilty knowledge, system, motive and intent.” Therefore there remains the question whether the admission of this testimony of three witnesses, in each instance technical error, was prejudicial, for it is only on prejudicial error that reversal is warranted. Buzdko, the first witness, had been regulaxly buying liquor from Meyers for two years before the indictment was found. To Buziko’s testimony that lie had bought liquor from Meyers “about three weeks ago,” that is,- between the indictment and trial, the appellants interposed no objection nor did they contradict it, move to strike it out, or, in presenting their points, ask the court to charge the jury 'in respect to it. The admission of evidence, without objection at the time or motion to exclude it later, is not reviewable. McIntosh v. United States (C. C. A.) 1 F.(2d) 427, 429; Allen v. United States (C. G. A.) 4 F.(2d) 688, 694. The next witness was Nitoski. While objection to his testimony of sales between indictment and trial was seasonably made, Nitoski was uncertain about his dates. He first said, that his last purchase was four or five months ago, that is, within the period between indictment and trial. He then extended it back six months which brought it to August, two months after the indictment was found; and finally he said that since he got the first subpoena “last June” he quit. The indictment was found in June. As there was no evidence of when (after indictment) the subpoena was issued and served and as there was evidence that immediately before the subpoena was issued his purchases were made weekly, it follows there was no evidence from which the jury could have found that the witness purchased liquor from Meyers after the return of the indictment. Moreover, in the event of a gap of a few days in this comparison of dates, it appears from Nitoski’s testimony that he had been making weekly purchases of liquor from Meyers for more than a year before the indictment. As this testimony of continuous pre-indictment purchases and sales was not contradicted it proved a part of the Meyers conspiracy so completely that evidence of any sales made subsequently to the indictment could not have been prejudicial. There is no doubt that Saling, the third witness, testified over objection that Mickey Meyers began selling him liquor, and that he and Samuel Meyers collected for it, after the indictment was found. If this had been the only testimony of an overt act in support of the charge of conspiracy, or if it had been a small yet relatively important part of the testimony of overt acts in proof of the conspiracy, or if it had been regarded by the defendants of sufficient importance to provoke contradiction and thus became an ingredient in a controverted issue of fact, Saling’s testimony might conceivably have raised a prejudice. But other testimony of conspiracy directed to these appellants concerning acts done before the indictment was such as to compel conviction wholly without regard to the acts concerning which Saling testified. The overt acts testified to by others were in number and character such as make the Saling sales insignificant. The other evidence standing uncontradieted was so strong and convincing that we cannot see how additional sales to this one customer could have influenced the jury or affected their verdict, Whitaker v. United States (C. C. A.) 5 F.(2d) 546, 548, or, in view of the record, how the appellants could have been prejudiced. Landfield v. United States (C. C. A.) 9 F.(2d) 315, 316. During the trial the government started to prove what prohibition agents "had found in a raid which they made on June 13, 1928, upon premises in the South Side of Pittsburgh. When its attention was called to the fact that the search had already been declared illegal, the government moved to strike out all the 'testimony on the subject. As the court granted the motion and thereby sustained the appellants’ objection and as no exception was, or could have been, noted, there is, we think, nothing to review except, as the appellants urge, the general effeet of the transaction upon the jury. This was not prejudicial. Finding no prejudicial error in the record and no infirmity in the sentences imposed upon Mickey Meyers and G-us Meyers in view of their conviction upon more than one count and for more than one conspiracy, the judgments are affirmed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. McMAHAN & COMPANY, Froley, Revy Investment Co., Inc. and Wechsler & Krumholz, Inc., Plaintiffs-Appellants, v. WHEREHOUSE ENTERTAINMENT, INC., Louis A. Kwiker, George A. Smith, Michael T. O’Kane, Lawrence K. Harris, Donald E. Martin, Joel D. Tauber, Furman Selz Mager Dietz & Birney, Inc., Wei Acquisition Corp., Wei Holdings, Inc., Adler & Shaykin, and Chemical Bank, Defendants-Appellees. No. 399, Docket 89-7664. United States Court of Appeals, Second Circuit. Argued Dec. 19, 1989. Decided April 10, 1990. Philip K. Howard, New York City (Howard, Darby & Levin, Warren G. Caywood, Jr., Bonnie Blacklock, of counsel), for appellant McMahan. Dennis J. Block, New York City (Weil, Gotshal & Manges, H. Adam Prussin, Richard B. Friedman, Miranda S. Schiller, of counsel), for appellee Wherehouse. Before OAKES, PRATT, Circuit Judges, and SAND, District Judge for the S.D.N.Y., sitting by designation. GEORGE C. PRATT, Circuit Judge: Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, dismissing their complaint that defendants made material misrepresentations and omissions in a debenture offering in violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j; § 11 of the Securities Act of 1933, 15 U.S.C. § 77k; and § 12(2) of the Securities Act of 1933, 15 U.S.C. § 111. Finding that the complaint “fail[ed] to allege any omission or misstatement of fact — material or otherwise — within the meaning of the securities laws”, the district court granted summary judgment to defendants. The court also dismissed plaintiffs’ state-law claims for lack of pendent jurisdiction. Since we conclude that plaintiffs presented sufficient evidence to create a genuine issue as to whether the offering was materially misleading, we reverse the summary judgment and remand the case for further proceedings. BACKGROUND Defendant Wherehouse Entertainment, Inc. offered 61/)% convertible subordinated debentures whose key selling feature was a right of holders to tender the debentures to Wherehouse in the case of certain triggering events which might endanger the value of the debentures. The tender right was to arise if: (a) A person or group * * * shall attain the beneficial ownership * * * of an equity interest representing at least 80% of the voting power * * * unless such attainment has been approved by a majority of the Independent Directors; (b) The Company * * * consolidates or merges * * * unless approved by a majority of the Independent Directors; (c) The Company * * * incurs * * * any Debt * * * excluding * * * Debt which is authorized or ratified by a majority of the Independent Directors, immediately after the incurrence of which the ratio of the Company’s Consolidated Total Debt to its Consolidated Capitalization exceeds .65 to 1.0. Indenture § 5.02, 11-12 (June 15, 1986); see also Prospectus Summary, “Optional Tender”, 3 (July 10, 1986); id. Description of Debentures, “Optional Debenture Tender”, 25-26. The offering materials defined an “Independent Director” as “a director of the Company” who was not a recent employee but who was a member of the board of directors on the date of the offering or who was subsequently elected to the board by the then-independent Directors. Indenture, § 5.02, 12; Prospectus Description of Debentures, “Optional Debenture Tender”, 26. The reason offered for this unusual right to tender was that it would be a protection against certain forms of takeover attempts, including leveraged buyouts. Prospectus Description of Debentures, “Effect on Certain Takeovers”, 27. At the heart of this appeal is the meaning of the limitation placed on the right to tender by the role of “Independent Directors”. Plaintiffs are financial institutions that purchased 34% of the convertible debentures. Eighteen months after the purchase, Wherehouse entered into a merger agreement with defendants WEI Holdings, Inc. and its subsidiary WEI Acquisition Corp. The practical effect of the merger, accomplished through a leveraged buy-out, left Wherehouse with a debt approaching 90% of its capitalization and left plaintiffs’ debentures valued at only approximately 50% of par. Plaintiffs attempted to exercise their right to tender, but the company refused to redeem the debentures on the ground that the “board of directors” had approved the merger. Plaintiffs then commenced this suit for damages and an injunction to prevent the merger. Named as defendants were Wherehouse, various officers of Where-house, the underwriter of the debentures, WEI Holdings, Inc., WEI Acquisition Corp., and the bank that was financing the tender offer. Plaintiffs claimed that the descriptions of the debentures in the registration materials, as well as representations made during conversations, were materially misleading. Specifically, they claimed that, even though the defendants knew that the right to tender was illusory, their representations of the right as valuable and protected had misled investors into buying the debentures and therefore violated federal securities laws. In the alternative, claiming that the representations created a right to tender under the contract, plaintiffs asserted state-law claims of breach of contract, interference with contract, breach of implied duty of good faith, and fraudulent conveyance. Defendants argued that all the relevant provisions were clear and unambiguous and that no false statements were made; thus the offering was not materially misleading or in violation of the securities laws. The district court found nothing misleading. It granted summary judgment to defendants and dismissed plaintiffs’ state-law claims for lack of pendent jurisdiction. The district court held that defendants were not required to speculate about the likelihood of a waiver of debentureholders’ rights by the Independent Directors and that, even if the right were worthless, defendants were not required to use pejorative terms describing it as such. Moreover, it found the tender option was not illusory, because it (was possible that it) might provide a benefit to debentureholders in the case of a takeover hostile to shareholders which management chose to fight. Finally, according to the district court, the definition of “Independent Directors” was adequate because further description of their role, the extent of their discretion, their interests, or their intent would constitute mere legal conclusions, characterizations, or descriptions of underlying motives and were not required disclosures. Thus, the district court found that the descriptions of the right were not misstatements, and that the alleged omissions were not required to be disclosed under the securities laws. We disagree with the district court’s atomistic consideration of the presentation of the debentureholders’ right to tender. The district court concluded that defendants had not misled plaintiffs because the information they included in the written and oral representations was “literally true”. We think, however, that when read as a whole, the defendants’ representations connoted a richer message than that conveyed by a literal reading of the statements. The central issue on all three claims is not whether the particular statements, taken separately, were literally true, but whether defendants’ representations, taken together and in context, would have mislead a reasonable investor about the nature of the debentures. Some statements, although literally accurate, can become, through their context and manner of presentation, devices which mislead investors. For that reason, the disclosure required by the securities laws is measured not by literal truth, but by the ability of the material to accurately inform rather than mislead prospective buyers. Greenapple v. Detroit Edison Co., 618 F.2d 198, 205 (2d Cir.1980) (where method of presentation or “gloss” placed on information obscures or distorts significance of material facts, it is misleading). Even “ ‘a statement which is literally true, if susceptible to quite another interpretation by the reasonable investor * * * may properly * * * be considered a material misrepresentation.’ ” Beecher v. Able, 374 F.Supp. 341, 347 (S.D.N.Y.1974) quoting SEC v. First American Bank & Trust Co., 481 F.2d 673 (8th Cir.1973). We hold that the district court erred in granting summary judgment to the defendants because plaintiffs have raised a triable issue as to whether the written and oral representations about the right to tender these debentures were materially misleading to a reasonable investor in violation of § 11 and § 12 of the 1933 Securities Act and also of § 10(b) of the 1934 Securities Exchange Act. Since the analysis for all three securities claims is similar, we will first consider it in some detail under § 11, and then review it only briefly under §§ 12 and 10(b). A. Section 11 of the Securities Act of 1933 Section 11 states that any signer, officer of the issuer, and underwriter may be held liable for a registration statement which “contained an untrue statement of a material fact or omitted to state a material fact * * * necessary to make the statements therein not misleading”. Plaintiffs claim that these offering materials misstated the right to tender and omitted important information about it in violation of § 11. They argue that a reasonable investor would have believed that the right to tender was valuable because it was presented as a right to be exercised at the holder’s option and as a protection against takeovers that might affect the security of the debentures. In truth, however, the right to tender was illusory, they argue, because it was designed to be exercised only at the option of management and therefore was intended to protect the interests of shareholders, not of debenturehold-ers. Plaintiffs are correct that the offering materials can reasonably be read to present the option to tender as a valuable right. The language used was invariably language of entitlement: Holder’s Right to Tender. The Holder of any Security or Securities shall have the right, at his option, * * * to tender for redemption any such Security or Securities. Indenture § 5.01, 10 (emphasis added). The prospectus summary provided that: “Each holder of Debentures has the option to require the Company to redeem the holder’s Debentures.” “Optional Tender”, 3 (emphasis added). And the prospectus itself stated: “Holders of the Debentures will have the option * * * to require the Company to redeem such Debentures.” Description of Debentures, “Optional Debenture Tender”, 25 (emphasis added). Further, a jury could reasonably view the presentation of the right to tender as a special feature to protect investors, for the offering materials stressed the purported value of the right in any takeover transaction which would threaten the value of the debentures. Since the events which give rise to such right of redemption could be expected to occur in connection with certain forms of takeover attempts, the optional tender provisions could deter takeovers where the person attempting the takeover views itself as unable to finance the redemption of the principal amount of Debentures which may be tendered * * * To the extent that Debentures may be tendered * * * the Company would be unable to use the financing provided by the sale of the Debentures offered hereby. In addition, the ability of the Company to obtain additional Senior Debt based on the existence of the Debentures would be similarly adversely affected. Prospectus Description of Debentures, “Effect on Certain Takeovers”, 27; see also id. “Optional Debenture Tender”, 26. Finally, the right was restricted only in that it was subject to action by “the Independent Directors”. Similar language describing the restriction — the right to tender occurs upon a triggering event, “unless [the event is] approved by a majority of the Independent Directors” (emphasis added)— is found in the Indenture, § 5.02, 11-12; in the prospectus summary, “Optional Tender”, 3; and again in the full prospectus, Description of Debentures, “Optional Debenture Tender”, 25-26. A jury could reasonably find that this repeated use of the word “unless” encouraged the inference that exercise of the right would be the norm and that waiver would be the exception. Although the offering materials explain that the Independent Directors would be chosen from the company’s board of directors, the term “Independent Director” implies a special status, some distinction from an “ordinary” director. The term suggests that these directors would be “independent” of management and the normal obligations of board members to act in the interests of shareholders. Thus the restriction could reasonably be understood to mean that in the case of a triggering event, the right to tender would arise unless the Independent Directors find the event to be in the interests of the debentureholders. In short, as plaintiffs argue, a reasonable investor could have regarded the right to tender as a valuable right, protected by Independent Directors who would, in situations endangering the security of the debentures, consider debentureholders’ interests before approving any waiver of their right. By thus representing that in a takeover context the Independent Directors would be considering the interests of debenture-holders, the defendants implied that the Independent Directors had a duty to protect the debentureholders’ interests. Defendants, however, have shown nothing in their corporate charter or by-laws that would have permitted, much less required, these Independent Directors to favor de-bentureholders over shareholders. Moreover, at the time of the approval of this merger, the Independent Directors constituted all but one of the “ordinary” directors on the board. As ordinary directors, they had a fiduciary duty to protect the interests of shareholders in any takeover situation, regardless of deben-tureholders’ interests or rights. It is inevitable, then, that the so-called Independent Directors had no independence; they would never protect the interests of debenture-holders except by coincidence because, as ordinary directors, they were required by law to protect the interests of the shareholders. From this perspective, there is merit in plaintiffs’ contentions that the right to tender was illusory and that the representations of it in the offering materials were misleading. In sum, on a fair reading of the offering materials, despite their literal meaning, an investor could have reasonably believed that the tender option was presented as a valuable right for debentureholders; that it provided a special feature of protection for their interests; and that Independent Directors were to render independent votes on the right to tender based on the impact of a merger and on the interests of deben-tureholders. But if, as plaintiffs claim, the right to tender was illusory because the Independent Directors were tied to management, served its needs, protected shareholders’ interests, and would inevitably waive the right in any merger beneficial to management regardless of deben-tureholders’ interests, then the offering materials could be found by a rational trier of fact to be materially misleading in violation of § 11 of the Securities Act of 1933. Plaintiffs have therefore raised a genuine issue as to whether the written representations could have misled a reasonable investor, Greenapple, 618 F.2d at 205, and summary judgment was therefore unwarranted. B. Section 12 of the Securities Act of 1933 Section 12(2) of the Securities Act of 1933 presents a problem similar to § 11, but it has the added factor of oral representations made to the investors in order to induce them to purchase. Section 12(2) states that anyone who makes a securities offering “by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements * * * not misleading * * * shall be liable” (emphasis added). In an affidavit, Thomas Revy of plaintiff Froley, Revy, alleges that in a phone conversation and at a “due diligence” lunch, officers of Wherehouse specifically represented that the debentures included the right to tender as a “protective covenant for the debentureholders” against takeovers. Plaintiffs claim these oral communications were untrue and violated § 12(2). Defendants argue that the statements were accurate because they would protect holders in the event of a takeover that was hostile to management. The district court agreed, finding that “where the company might find itself subjected to an hostile takeover, the right to tender could, indeed, be ‘protective’ of the debentureholders’ interests.” However, the language used — “protective covenant” and “special protection” — is promissory and unrestricted. The statements clearly imply that the protection to debentureholders would extend to the case of any takeover hostile to the holders’ rights. It would be, to say the least, a cramped interpretation to view the right to tender as a “protective covenant for the debentureholders” if its protection were limited to a takeover that was hostile only to management and the shareholders. Finally, by representing that this special right to tender was the key selling feature of otherwise low-value debentures, defendants could be found to have implied that debentureholders would be protected against takeovers hostile to their own interests, regardless of the interests of shareholders, and thus to have misled plaintiffs as to the true nature of the right. Summary judgment was therefore inappropriate on plaintiffs’ § 12(2) claim. C. Section 10(b) of the Securities Exchange Act of 193) Section 10(b) of the Securities Exchange Act of 1934, the general fraud provision of the act, prohibits any person from using or employing “any manipulative or deceptive device” in connection with the sale of a security. To state a claim under this section, plaintiffs “must allege material misstatements or omissions indicating an intent to deceive or defraud in connection with the purchase or sale of a security.” Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Plaintiffs claim that disclosure of the true nature of the tender provision not only would have altered a reasonable investor’s investment decision, but would have dissuaded investment here by showing these debentures to be a poor risk. They allege that Wherehouse knew this and so deliberately misrepresented the right-to-tender feature, thereby misleading investors in violation of § 10(b). The district court, having dismissed the claims under §11, found it was therefore impossible to state a § 10(b) claim. Since we have concluded that a question of fact is presented as to whether the offering materials and the oral communications, taken together, could have misled a reasonable investor, it follows that a jury should also determine whether the defendants violated § 10(b). D. Pendent Claims Since the only reason for the district court’s dismissing plaintiffs’ pendent state-law claims was that the federal basis for jurisdiction had disappeared, now that we have reinstated the federal claims, the pendent claims are reinstated as well. Reversed and remanded. SAND, District Judge: The reasons why I am constrained to dissent may be briefly stated. The question whether an anti-takeover provision provides a “special protection” to debentureholders cannot be answered in the negative merely because the “Independent Directors” decided to waive its provisions and approve a particular transaction. These directors were explicitly empowered to act in this fashion by virtue of the fully disclosed terms of the provision. A significant function of an anti-takeover provision is to serve as a deterrent to hostile takeovers, including takeovers which would be contrary to the interests of both shareholders and debentureholders. One cannot, I believe, fairly characterize such a provision as being “worthless” to the debenturehold-ers, even though as a matter of Delaware law directors owe a fiduciary duty solely to shareholders. The anti-takeover provision was therefore a “special protection” to de-bentureholders, albeit a limited one. Federal securities laws do not impose an obligation to advise investors of the fundamentals of corporate governance. The disclosure required by the federal securities laws is not a “rite of confession or exercise in common law pleading. What is required is the disclosure of material objective factual matters.” Data Probe Acquisition Corp. v. Data Lab, Inc., 722 F.2d 1, 5-6 (2d Cir.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984). Especially is this so where, as here, the investor-complainants are sophisticated financial institutions making major investments. The role of the federal securities laws is not to remedy all perceived injustices in securities transactions. Rather, as invoked in this case, it proscribes only the making of false and misleading statements or material omissions. Whether the Independent Directors breached an implied duty of good faith or otherwise acted contrary to their fiduciary obligations are matters of state law. Here, the federal claims were asserted only conditionally, the express condition being the failure of the state law claims. These state claims were properly dismissed by the court below for lack of pendent jurisdiction. Believing no valid federal claim to be present, I would affirm essentially for the reasons set forth in the Opinions of the Magistrate and District Court. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_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 KANSAS v. VENTRIS No. 07-1356. Argued January 21, 2009 Decided April 29, 2009 Stephen R. McAllister, Solicitor General of Kansas, argued the cause for petitioner. With him on the briefs were Steve Six, Attorney General, and Jared S. Maag, Deputy Solicitor General. Nicole A. Saharsky argued the cause for the United States as amicus curiae urging reversal. With her on the brief were former Solicitor General Garre, Acting Assistant Attorney General Friedrich, and Deputy Solicitor General Dreeben. Matthew J. Edge, by appointment of the Court, 555 U. S. 1030, argued the cause for respondent. With him on the brief was Randall L. Hodgkinson. Briefs of amici curias urging reversal were filed for the State of New Mexico et al. by Gary K. King, Attorney General of New Mexico, and Joel Jacobsen, Assistant Attorney General, by Richard S. Gebelein, Chief Deputy Attorney General of Delaware, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, John TV Suthers of Colorado, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Jack Conway of Kentucky, Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Mike McGrath of Montana, Kelly A Ayotte of New Hampshire, Anne Milgram of New Jersey, Wayne Stenehjem of North Dakota, TV A Drew Edmondson of Oklahoma, Thomas TV Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. Amy Howe, Kevin K. Russell, Thomas C. Goldstein, Pamela S. Karlan, and Jeffrey L. Fisher filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. Justice Scalia delivered the opinion of the Court. We address in this case the question whether a defendant’s incriminating statement to a jailhouse informant, concededly elicited in violation of Sixth Amendment strictures, is admissible at trial to impeach the defendant’s conflicting statement. I In the early hours of January 7,2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash. The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks's home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter. Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. App. 146. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and ... a vehicle.” Id., at 154, 150. At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris’s prior contradictory statement; Ventris objected. The State conceded that there was “probably a violation” of Ventris’s Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation “doesn’t give the Defendant... a license to just get on the stand and lie.” Id., at 143. The trial court agreed and allowed the informant’s testimony, but instructed the jury to “consider with caution” all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts. The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.” 285 Kan. 595, 606, 176 P. 3d 920, 928 (2008). Chief Justice McFarland dissented, id., at 611, 176 P. 3d, at 930. We granted the State’s petition for certiorari, 554 U. S. 944 (2008). II The Sixth Amendment, applied to the States through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” The core of this right has historically been, and remains today, “the opportunity for a defendant to consult with an attorney and to have him investigate the case and prepare a defense for trial.” Michigan v. Harvey, 494 U. S. 344, 348 (1990). We have held, however, that the right extends to having counsel present at various pretrial “critical” interactions between the defendant and the State, United States v. Wade, 388 U. S. 218, 224 (1967), including the deliberate elicitation by law enforcement officers (and their agents) of statements pertaining to the charge, Massiah v. United States, 377 U. S. 201, 206 (1964). The State has conceded throughout these proceedings that Ventris’s confession was taken in violation of Massiah’s dictates and was therefore not admissible in the prosecution’s case in chief. Without affirming that this concession was necessary, see Kuhlmann v. Wilson, 477 U. S. 436, 459-460 (1986), we accept it as the law of the case. The only question we answer today is whether the State must bear the additional consequence of inability to counter Ventris’s contradictory testimony by placing the informant on the stand. A Whether otherwise excluded evidence can be admitted for purposes of impeachment depends upon the nature of the constitutional guarantee that is violated. Sometimes that explicitly mandates exclusion from trial, and sometimes it does not. The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise. New Jersey v. Portash, 440 U. S. 450, 458-459 (1979). The Fourth Amendment, on the other hand, guarantees that no person shall be subjected to unreasonable searches or seizures, and says nothing about excluding their fruits from evidence; exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee. Inadmissibility has not been automatic, therefore, but we have instead applied an exclusionary-rule balancing test. See Walder v. United States, 347 U. S. 62, 65 (1954). The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct. See Harris v. New York, 401 U. S. 222, 225-226 (1971); Harvey, supra, at 348-350. Respondent argues that the Sixth Amendment’s right to counsel is a “right an accused is to enjoy a[t] trial” Brief for Respondent 11. The core of the right to counsel is indeed a trial right, ensuring that the prosecution’s case is subjected to “the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U. S. 648, 656 (1984). See also Powell v. Alabama, 287 U. S. 45, 57-58 (1932). But our opinions under the Sixth Amendment, as under the Fifth, have held that the right covers pretrial interrogations to ensure that police manipulation does not render counsel entirely impotent — depriving the defendant of “‘effective representation by counsel at the only stage when legal aid and advice would help him.’ ” Massiah, supra, at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)). See also Miranda v. Arizona, 384 U. S. 436, 468-469 (1966). Our opinion in Massiah, to be sure, was equivocal on what precisely constituted the violation. It quoted various authorities indicating that the violation occurred at the moment of the postindictment interrogation because such questioning “‘contravenes the basic dictates of fairness in the conduct of criminal causes.’ ” 377 U. S., at 205 (quoting People v. Waterman, 9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448 (1961)). But the opinion later suggested that the violation occurred only when the improperly obtained evidence was “used against [the defendant] at his trial.” 377 U. S., at 206-207. That question was irrelevant to the decision in Massiah in any event. Now that we are confronted with the question, we conclude that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation. That, we think, is when the “Assistance of Counsel” is denied. It is illogical to say that the right is not violated until trial counsel’s task of opposing conviction has been undermined by the statement’s admission into evidence. A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt — even evidence so overwhelming that the attorney’s job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much. The assistance of counsel has been denied, however, at the prior critical stage which produced, the inculpatory evidence. Our cases acknowledge that reality in holding that the stringency of the warnings necessary for a waiver of the assistance of counsel varies according to “the usefulness of counsel to the accused at the particular [pretrial] proceeding.” Patterson v. Illinois, 487 U. S. 285, 298 (1988). It is that deprivation which demands a remedy. The United States insists that “post-charge deliberate elicitation of statements without the defendant's counsel or a valid waiver of counsel is not intrinsically unlawful.” Brief for United States as Amicus Curiae 17, n. 4. That is true when the questioning is unrelated to charged crimes — the Sixth Amendment right is “offense specific,” McNeil v. Wisconsin, 501 U. S. 171, 175 (1991). We have never said, however, that officers may badger counseled defendants about charged crimes so long as they do not use information they gain. The constitutional violation occurs when the uncounseled interrogation is conducted. B This case does not involve, therefore, the prevention of a constitutional violation, but rather the scope of the remedy for a violation that has already occurred. Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safeguarded by such exclusion are “outweighed by the need to prevent perjury and to assure the integrity of the trial process.” Stone v. Powell, 428 U. S. 465, 488 (1976). “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can . . . provide himself with a shield against contradiction of his untruths.” Walder, supra, at 65. Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of “the traditional truth-testing devices of the adversary process,” Harris, supra, at 225, is a high price to pay for vindication of the right to counsel at the prior stage. On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen — or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief. In any event, even if “the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material,” we have multiple times rejected the argument that this “speculative possibility” can trump the costs of allowing perjurious statements to go unchallenged. Oregon v. Hass, 420 U. S. 714, 723 (1975). We have held in every other context that tainted evidence — evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid — is admissible for impeachment. See ibid.; Walder, 347 U. S., at 65; Harris, 401 U. S., at 226; Harvey, 494 U. S., at 348. We see no distinction that would alter the balance here. * * * We hold that the informant’s testimony, concededly elicited in violation of the Sixth Amendment, was admissible to challenge Ventris’s inconsistent testimony at trial. The judgment of the Kansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Ginsburg joins, dissenting. In Michigan v. Harvey, 494 U. S. 344 (1990), the Court held that a statement obtained from a defendant in violation of the Sixth Amendment could be used to impeach his testimony at trial. As I explained in a dissent joined by three other Members of the Court, that holding eroded the principle that “those who are entrusted with the power of government have the same duty to respect and obey the law as the ordinary citizen.” Id., at 369. It was my view then, as it is now, that “the Sixth Amendment is violated when the fruits of the State’s impermissible encounter with the represented defendant are used for impeachment just as it is when the fruits are used in the prosecutor’s case in chief.” Id., at 355. In this case, the State has conceded that it violated the Sixth Amendment as interpreted in Massiah v. United States, 377 U. S. 201, 206 (1964), when it used a jailhouse informant to elicit a statement from the defendant. No Miranda warnings were given to the defendant, nor was he otherwise alerted to the fact that he was speaking to a state agent. Even though the jury apparently did not credit the informant’s testimony, the Kansas Supreme Court correctly concluded that the prosecution should not be allowed to exploit its pretrial constitutional violation during the trial itself. The Kansas court’s judgment should be affirmed. This Court’s contrary holding relies on the view that a defendant’s pretrial right to counsel is merely “prophylactic” in nature. See ante, at 591. The majority argues that any violation of this prophylactic right occurs solely at the time the State subjects a counseled defendant to an uncounseled interrogation, not when the fruits of the encounter are used against the defendant at trial. Ante, at 592. This reasoning is deeply flawed. The pretrial right to counsel is not ancillary to, or of lesser importance than, the right to rely on counsel at trial. The Sixth Amendment grants the right to counsel “[i]n all criminal prosecutions,” and we have long recognized that the right applies in periods before trial commences, see United States v. Wade, 388 U. S. 218, 224 (1967). We have never endorsed the notion that the pretrial right to counsel stands at the periphery of the Sixth Amendment. To the contrary, we have explained that the pretrial period is “perhaps the most critical period of the proceedings” during which a defendant “requires the guiding hand of counsel.” Powell v. Alabama, 287 U. S. 45, 57, 69 (1932); see Maine v. Moulton, 474 U. S. 159, 176 (1985) (recognizing the defendant’s “right to rely on counsel as a ‘medium’ between him and the State” in all critical stages of prosecution). Placing the prophylactic label on a core Sixth Amendment right mischaraeterizes the sweep of the constitutional guarantee. Treating the State’s actions in this case as a violation of a prophylactic right, the Court concludes that introducing the illegally obtained evidence at trial does not itself violate the Constitution. I strongly disagree. While the constitutional breach began at the time of interrogation, the State’s use of that evidence at trial compounded the violation. The logic that compels the exclusion of the evidence during the State’s case in chief extends to any attempt by the State to rely on the evidence, even for impeachment. The use of ill-gotten evidence during any phase of criminal prosecution does damage to the adversarial process — the fairness of which the Sixth Amendment was designed to protect. See Strickland v. Washington, 466 U. S. 668, 685 (1984); see also Adams v. United States ex rel. McCann, 317 U. S. 269, 276 (1942) (“[The] procedural devices rooted in experience were written into the Bill of Rights not as abstract rubrics in an elegant code but in order to assure fairness and justice before any person could be deprived of ‘life, liberty or property’ ”). When counsel is excluded from a critical pretrial interaction between the defendant and the State, she may be unable to effectively counter the potentially devastating, and potentially false, evidence subsequently introduced at trial. Inexplicably, today’s Court reftises to recognize that this is a constitutional harm. Yet in Massiah, the Court forcefully explained that a defendant is “denied the basic protections of [the Sixth Amendment] guarantee when there [is] used against him at his trial evidence of his own incriminating words” that were “deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U. S., at 206. Sadly, the majority has retreated from this robust understanding of the right to counsel. Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process. “The State’s interest in truthseeking is congruent with the defendant’s interest in representation by counsel, for it is an elementary premise of our system of criminal justice ‘“that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” ’ ” Harvey, 494 U. S., at 357 (Stevens, J., dissenting) (quoting United States v. Cronic, 466 U. S. 648, 655 (1984)). Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerable in all cases. I respectfully dissent. Respondent’s amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Brief for National Association of Criminal Defense Lawyers 25-26. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid “establishfing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure.” Spencer v. Texas, 385 U. S. 554, 564 (1967). It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge’s cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder. See Miranda v. Arizona, 384 U. S. 436 (1966). The likelihood that evidence gathered by self-interested jailhouse informants may be false cannot be ignored. See generally Brief for National Association of Criminal Defense Lawyers as Amicus Curiae. Indeed, by deciding to acquit respondent of felony murder, the jury seems to have dismissed the informant’s trial testimony as unreliable. In the majority’s telling, “simply” having counsel whose help is “not worth much” is not a Sixth Amendment concern. Ante, at 592. Of course, the Court points to no precedent for this stingy view of the Counsel Clause, for we have never held that the Sixth Amendment only protects a defendant from actual denials of counsel. Indeed our venerable ineffective-assistance-of-counsel jurisprudence is built on a more realistic understanding of what the Constitution guarantees. See Strickland v. Washington, 466 U. S. 668 (1984); McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970) (“[T]he right to counsel is the right to the effective assistance of counsel”). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable 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. UNITED STATES of America, Appellee, v. William A. YATES, II, Defendant, Appellant. No. 91-1778. United States Court of Appeals, First Circuit. Heard Feb. 3, 1992. Decided Aug. 17, 1992. Deirdre L. Thurber, New York City, by Appointment of the Court, for defendant, appellant. Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and Jonathan R. Chapman, Asst. U.S. Atty., Portland, Me., were on brief, for U.S. Before CYR, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges. CAMPBELL, Senior Circuit Judge. Appellant William A. Yates, II, (Yates) pled guilty in the United States District Court for the District of Maine to a one count information charging him with unauthorized use of credit cards in violation of 18 U.S.C. §§ 1029(a)(2) and 1029(b)(1). He was sentenced to 30 months of incarceration. On appeal, Yates challenges the district court’s calculation of his sentence under the United States Sentencing Guidelines. He complains of a two level increase for obstruction of justice under U.S.S.G. § 3C1.1; a two level increase for possession of a loaded firearm under U.S.S.G. § 5K2.0; and an assessment of 13 criminal history points resulting in a criminal history category of VI. While otherwise affirming, we agree with Yates that the obstruction of justice increase was improper, and remand for resentencing. Background We draw the facts from the Presentence Investigation Report (PSI Report) and the transcript of the sentencing hearing. United States v. Connell, 960 F.2d 191 (1st Cir.1992); United States v. Garcia, 954 F.2d 12, 14 (1st Cir.1992); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991). On November 8, 1990, the New Hampshire residence of Mark Watkins (Watkins) was burglarized. Among the items stolen were several credit cards; a Colt .45 with ammunition; a lap top computer; a camera; jewelry and compact discs. The following day the New Hampshire Police chased a stolen automobile driven by Yates and his girlfriend Kathie Guilmette. During the chase, Yates and Guilmette threw some of the stolen items out the car’s window. The police discontinued pursuit because of hazardous driving conditions. With the exception of the credit cards and the gun and ammunition, the police recovered most of the items stolen from Watkins’s residence. On November 21, 1990, Yates and Guil-mette were involved in yet another high speed chase, this time in Massachusetts. The chase began when a Massachusetts state trooper tried to stop a speeding vehicle driven by Yates, Guilmette and a third passenger. The pursuit went eastbound from route 495 to route 114 in the Lawrence/Lowell area in Massachusetts. While trying to elude the police, the fleeing car hit two other vehicles injuring one of the drivers. The police stopped the fleeing car, but Yates and Guilmette managed to escape on foot. The Massachusetts state trooper identified Yates as the driver of the fleeing car at a photographic lineup. After an extensive investigation, Maine police officers determined that a man and a woman matching the description of Yates and Guilmette given by New Hampshire police were registered under the name Sta-chulski at a motel in Portland, Maine. The Maine Police arrested Yates and Guilmette there on December 2, 1990. While searching the motel room, police officers found Watkins’s credit cards as well as checks and social security cards. They also seized drugs and the Colt .45 stolen from Watkins’s residence. The Colt was discovered to be loaded. Further investigation revealed that between November 14, 1990 and November 23, 1990, Yates and Guilmette used three stolen credit cards to make purchases valued at $1,999.74. The cards were a Visa card in the name of Christine Stachulski, a Sears card in the name of Watkins, and a Mastercard also in the name Watkins. When Yates was arrested in Portland on December 2, 1990, he told police officers that his name was William Alan Stickles. His companion Guilmette also provided a false name, but shortly thereafter revealed her true identity. Yates was taken to the Cumberland County jail, where he insisted he was Stickles. Yates gave as date of birth September 29, 1961 and a social security number of [ XXX-XX-XXXX ]. This information was also false. When Portland Police Detective Peter Baleyco became suspicious of the identity of the man he had just apprehended, he secured the help of United States Secret Service Agent Philip Paradis for checking out the true identity of the man claiming to be Stickles. On December 3; 1990, Paradis began an investigation on unauthorized use and possession of a social security card. He learned that the social security number provided by Yates belonged to a ten year old boy who lived in New Hampshire, and that no social security number had been issued to a William Alan Stickles. On December 5, 1990, a federal grand jury indicted Yates under the name of Stickles — his true identity being unknown — for giving a false social security number. The Stickles name was also used in various official acts undertaken in connection with his apprehension and custody, such as entering his record in the State Bureau of Identification system, and in the Cumberland County Jail records. Meanwhile, Paradis had forwarded Yates’ fingerprints to the Secret Service laboratory. On December 6, 1990, Paradis learned that the fingerprints belonged to Yates. The investigation further revealed that' Yates was wanted for a probation violation in New Hampshire. On December 7, 1990, Paradis visited Yates in prison to gather additional information. By this date Paradis already knew Yates’ true identity and Yates acknowledged his true name. At some point between January 1 and January 9, 1991, Assistant U.S. Attorney Jonathan Chapman [Chapman) assumed control over the false social security number ease. He determined that all the evidence obtained when Yates was arrested on December 2nd would be inadmissible because it had been illegally seized. Chapman then asked Paradis if it was possible to find a charge to bring against Yates that could be developed independently of the illegally seized evidence. Paradis stated that there was independent evidence to charge Yates with unauthorized use of credit cards. This evidence consisted mainly of the information provided both by the Massachusetts and New Hampshire Police, the victims of the credit card thefts and the credit card companies. On February 11, 1991, Yates agreed to waive indictment by the grand jury. He pled guilty to an Information charging him with unlawful use of access devices in violation of 18 U.S.C. §§ 1029(a)(2) and 1029(b)(1). Yates entered his plea on March 1, 1991. The district court ordered the preparation of a PSI Report and a sentencing hearing was scheduled for July 5, 1991. ' The district court found that the guideline for the offense of conviction was U.S.S.G. § 2F1.1(b)(1)(A) [Fraud and Deceit of $2,000 or less] which provides a Base Offense Level (BOL) of six. The court increased the BOL by two levels under U.S.S.G. § 2F1.1(b)(2) because it concluded that the offense conduct involved more than minimal planning. The government sought a two level increase under U.S.S.G. § 3C1.2 for reckless endangerment on the basis that the November 21 flight posed a substantial risk of death or serious bodily injury. The district court declined to impose this increase because it was not persuaded that the requisite nexus existed between the crime of conviction and Yates’ flight. The court nevertheless departed upwards by two levels under U.S.S.G. § 5K2.0 on the basis of Yates’ possession of a loaded firearm during a portion of the offense conduct. Although the government did not seek an obstruction of justice enhancement under U.S.S.G. § 3C1.1, the district court imposed a two level increase under that section of the guidelines. The court found that Yates falsely represented his identity to the arresting officers, and in doing so, significantly obstructed and impeded the officers in properly identifying him and completing their responsibilities with respect to documenting the arrest. Two levels were reduced under U.S.S.G. § 3El.l(a) for acceptance of responsibility. This calculation lead to a BOL of ten. The court assessed 13 criminal history points and determined that the criminal history category was VI. With a BOL of ten and a criminal history category of VI, the sentencing table provides a sentencing range of 24 to 30 months. The district court imposed 30 months. This appeal followed. I. Yates claims the district court erred in applying a two level increase to his BOL for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. We review that issue de novo. United States v. Manning, 955 F.2d 770 (1st Cir.1992); United States v. Bell, 953 F.2d 6 (1st Cir.1992); United States v. Moreno, 947 F.2d 7, 10 (1st Cir.1991). We will uphold the district court’s sentence so long as it results from a correct application of the guidelines to factual findings which are not clearly erroneous. United States v. Pilgrim Market Corp., 944 F.2d 14, 16 (1st Cir.1991); United States v. Akitoye, 923 F.2d 221, 228-229 (1st Cir.1991). In conducting that review, we apply the guidelines in effect on the date of sentencing. Bell, 953 F.2d at 7 (citing United States v. Cousens, 942 F.2d 800, 802 n. 1 (1st Cir.1991) (absent ex post facto problem, sentence is reviewed under guidelines in effect at time of sentencing, not commission of offense)). The district court sentenced Yates on July 5, 1991. The applicable guideline then in effect was U.S.S.G. § 3C1.1, as amended through November 1, 1990. This provided: If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by two levels. Application Note 4(a) in the then applicable Commentary to § 3C1.1 stated that providing a false name did not warrant the two level increase “except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” (Emphasis supplied.) See United States v. Barry, 938 F.2d 1327, 1333 (D.C.Cir.1991). If we limit ourselves to the text of § 3C1.1 alone, it can be argued that by furnishing a false name when arrested, Yates “willfully ... attempted to obstruct ... justice during the investigation” of the instant (i.e. credit card) offense, as all potentially chargeable offenses were, in some sense, under investigation at the time he was arrested, even though a particularized investigation of the credit card offense had yet to begin. Application Note 4(a), however, adds another wrinkle to the analysis. Note 4(a) requires a showing that the giving of the false name “actually resulted in a significant hindrance to the investigation or prosecution of the instant offense.” While Yates’ false representations to the arresting officers can be said to have actually and significantly hindered the investigation of the charge involving the false social security number, that charge was dropped late in 1990. Only thereafter was the “instant offense” involving the unauthorized use of the credit cards, specifically investigated and charged. United States v. Barry, 938 F.2d at 1333. By then, Yates’ identity was well known, and there is no evidence whatever that his previous giving of the false name actually hindered the investigation or prosecution of the instant offense. Indeed, the government’s principal witness, Paradis, testified to the contrary: Q. [by Assistant U.S. Attorney Chapman] All right. Now, would you state for the Court how it is that act on Mr. Yates’ part of giving a false name and social security number affected your investigations? A., [by S/A Paradis] The initial investigation as to providing false social security number was hindered due to the fact that he was not providing accurate information. THE COURT: What happened was you had a false identification and you had reason to suspect that he was not who he said he was, you had to undertake additional investigation effort to find out who he was? A. Yes. THE COURT: Next question. Q. How about with respect to the present charge? A. It could not hinder the current investigation being a credit card. (Emphasis supplied.) Q. Why is that? A. Due to the fact that I was aware of his identity at the time, and I had a body in hand, I was able to identify through-photo line ups who the individual was using the cards. The government contends that it is irrelevant for purposes of applying U.S.S.G. § 3C1.1 that at the time of the obstructive conduct, the authorities were actually investigating an offense other than the offense of conviction. But as pointed out above, Application note 4(a) — which was not in existence when Barry, see 938 F.2d at 1335, was decided — plainly states that providing a false name does not warrant the enhancement unless it actually results in a significant hindrance to the investigation or prosecution. Thus, even assuming that .Yates attempted to throw off the police in their investigation both of the false social security number offense and the fraudulent use of the credit cards, all factors, including the testimony of the main investigative officer, unequivocally establish that the false name did not actually hinder the investigation of the “instant” credit card offense. We hold, therefore, . that the two level increase for obstruction of justice was unwarranted. To affirm would require either a tortured reading of the commentary or our ignoring it altogether. To be sure, courts have on occasion refused to follow the commentary, and we do not foreclose the possibility of doing likewise in some particularly compelling matter. But we think the guidelines are complicated enough without our ordinarily proceeding along such a path. The Sentencing Commission itself is best situated to fine tune issues of this nature in its periodic review of the guidelines and commentary. In the meantime, courts and parties should be able to rely upon the commentary, at least in the vast generality of cases. Accordingly, without doubting the common sense of the district court’s ruling, we are constrained to hold that it was error to add a two level increase for obstruction of justice. II. Next, Yates challenges the district court’s upward departure by two levels under U.S.S.G. § 5K2.0 on two grounds: first, that the district court failed to give him notice of its intention to depart upwards as required by Burns v. United States, — U.S. -, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991); and second, that the departure was a violation of the guidelines. We consider these arguments seriatim. Yates’ first argument need not occupy us for long. The record flatly refutes Yates’ claim that he was not notified of the district court’s intention to depart upwards. The supplemental report prepared by the presentence investigator on June 28, 1991 specified as a second reason for departing upwards under U.S.S.G. § 5K2.0 that Yates was in possession of a loaded firearm. This constituted the notice required by Bums. As for the substantive justification for departure, the district court made the following finding: ... The basis of that departure is this defendant’s possession of a firearm, loaded, when it was seized during a portion of the offense conduct. This firearm was taken apparently at the same time the access devices [credit cards] that are the subject of the offense of conviction were taken by larsonist [sic], and with that firearm were taken 75 rounds of ammunition. The court infers from that, that it was taken definitely for a purpose. The amount of ammunition taken with it indicated it was intending to keep it for a considerable period of time and it was anticipated by the defendant in taking it that there would be need for considerable use. The court notes that by its own admission during one or the other of his instances in November of 1990 when he fled from the police officers, that he has told Mr. Paradis and others the reason for that was that he realized his possession of the firearm would cause him additional legal difficulties. It was a serious aspect of his criminal conduct. Then he continued to hold it, he did not discard it or get rid of it. And I find from all of the facts in this case that it is not improbable that he was keeping that weapon for the purpose of whatever assistance it might afford him in a confrontation with officers, if he should have such confrontation under circumstances where he could gain access to the weapon and, as such, it did pose, in his possession, a significant indeed frightening danger to the public welfare and safety. I am satisfied that because of the nature of this offense, the guideline provisions make no, provide for no consideration of possession of a firearm as an offense characteristic and that as such it is appropriate basis under 5K2.0 for the Court to depart upwards in recognition of the serious aspect of the offense behavior and I will depart upward by 2 levels ... Under U.S.S.G. § 5K2.0 the sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described. In this case, the aggravating circumstance was the alleged possession of a loaded firearm. We review the district court’s departure under the three-step process set forth in United States v. Díaz-Villafañe, 874 F.2d 43, 49 (1st Cir.1989), cert. denied, 493 U.S. 862, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989). First, we consider if the offense was sufficiently unusual to warrant departure. Since departures from the guidelines are meant to be the exception, not the rule, Díaz-Villafañe, 874 F.2d at 52, there must be “... something ‘special’ about a given offender, or the accouterments of the crime committed, which distinguishes the case from the mine-run for that offense.” United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989). In this case, the district court determined that the possession of a loaded firearm in close conjunction with events surrounding the offense of conviction was sufficiently unusual to warrant departure. We agree. The guideline for the offense of conviction — U.S.S.G. § 2Fl.l(b)(l)(A) [Fraud and Deceit of $2,000 or less] — does not list or mention as a relevant factor the possession or use of a firearm as a characteristic of that offense. This is understandable given the nonviolent characteristics of the offense. Clearly the presence of the loaded pistol was a circumstance beyond the “mine run” of cases involving misuse of a credit card. Next, we consider if the court’s findings relative to the firearm were supported by the evidence. We must accept these, of course,' unless they are clearly erroneous. United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989). The court found that Yates was in possession of the loaded firearm at the time he possessed the subject credit cards. The district court also found that Yates kept the weapon for whatever assistance it might afford him in a confrontation with officers, if he should have such confrontation under circumstances where he could gain access to the weapon and, as such, it did pose, in his possession, a significant indeed frightening danger to the public welfare and safety. Yates contends there was insufficient evidence that he used or even possessed the firearm in the course of the credit card offense. His mere possession of the loaded gun when arrested on December 2, 1990, a week after the period — November 14 through 23 — of the credit card crimes, was, he says insufficient proof. However, as the district court found and the government points out, there was other evidence from which to conclude that Yates held the loaded gun as insurance within the same period that he possessed and misused the stolen credit cards. He had stolen the weapon, the ammunition and the credit cards at the same time and from the same house. He used one of the cards to rent the automobile involved in the high speed chase in Massachusetts and he admitted to having the weapon with him during the chase. When arrested he still had both the cards and the loaded weapon. These and other circumstances mentioned by the court permitted the inference of a significant association between the loaded weapon and the misuse of the stolen cards. There is no necessity of proof that the gun was actually used in the credit card offense. Compare United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.1990). III. Finally, Yates claims the court erred in determining the number of criminal history points leading to a criminal history category of VI. We find no error. The PSI report indicates that Yates has an extensive criminal record. Between October 16, 1979 and October 26, 1979 Yates burglarized several residences in New Hampshire. All these burglaries occurred within Merrimack County, with the exception of one committed on October 23, 1979 in Hillsborough County. The district court concluded that although sentence was imposed for all burglaries on the same day, the burglary of October 23, 1979 involved different conduct in relation to the other burglaries and therefore was not a related case for purposes of U.S.S.G. § 4Al.l(a), (b) and (c). The court ruled that the October 23, 1979 burglary was an unrelated case to be counted separately and added three criminal history points. Yates argued that the district court erred in adding three criminal history points for the October 23, 1979 burglary because that burglary was a part of a common scheme. According to Yates, although this burglary occurred in a different county, a look at a New Hampshire map indicates that all the burglaries occurred within a small geographical area. Therefore, he was entitled to have the court consider that burglary as a related case and be treated as one sentence for sentencing under U.S.S.G. § 4Al.l(a), (b) and (c). We disagree. Under U.S.S.G. § 4A1.2(a)(2), prior sentences imposed on related cases are to be treated as one sentence for purposes of the criminal history. Application note 3 explains what constitutes “related cases:” Cases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing. The court should be aware that there may be instances in which this definition is overly broad and will result in a criminal history score that underre-presents the seriousness of the defendant’s criminal history and the danger he represents to the public. For example, if the defendant commits a number of offenses on independent occasions separated by arrests, and the resulting criminal cases are consolidated and result in a combined sentence of eight years, counting merely three points for this factor will not adequately reflect the seriousness of the defendant’s criminal history or the frequency with which he commits crimes. In such circumstances, the court should consider whether departure is warranted. See § 4A1.3. The district court awarded three points for the first of eight charges for which Yates was sentenced in Strafford County, New Hampshire on June 6, 1980. The court assigned no points for any of the seven other sentences he received in the same court on the same day. Similarly, the court assigned no criminal history points for any of the ten sentences Yates received in Merrimack County, New Hampshire also on June 6, 1980. Thus, Yates received only three criminal history points for a total of eighteen convictions. In the circumstances here, the court’s determination relative to Yates’ criminal history was well founded and fully justified. We affirm the sentence in all respects except as to the two level increase for obstruction of justice. The sentence is vacated and the case remanded for further proceedings in accordance herewith. . The United States Secret Service has jurisdiction to investigate criminal violations relating to access devices pursuant to 18 U.S.C. § 1029. . Cf. United States v. Stinson, 957 F.2d 813, 915 (11th Cir.1992) (although commefitary should generally be regarded as persuasive, it is not binding); United States v. Elmendorf, 945 F.2d 989, 997 (7th Cir.1991) (quoting United States v. Pinto, 875 F.2d 143, 144 (7th Cir.1989) (application notes are not binding law, they are only advisory commentary to assist in .the application of the statute)); and compare United States v. Madera-Gallegos, 945 F.2d 264, 267 (9th Cir.1991) (citing United States v. Anderson, 942 F.2d 606 (9th Cir.1991) (en banc) (courts should always consider the commentary and should construe a guideline and its commentary so as to be consistent, if that is possible.) . In Burns, 111 S.Ct. at 2187, the Supreme Court held that: ... before the district court can depart upward on a ground not specified as a ground for upward departure either in the presen-tence report or in a prehearing submission by the Government, Rule 32 requires that the district court give the parties reasonable notice that it is contemplating such ruling. This notice must specifically identify the ground on which the district court is contemplating an upward departure, (footnote omitted). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_standing	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that the parties had standing?" 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". RITKOFSKY v. UNITED STATES. No. 4849. Circuit Court oí Appeals, Third Circuit. July 8, 1932. Frederic M. P. Pearse and George R. Sommer, both of Newark, N. J., for appellant. Phillip Forman, U. S. Atty., and Walter I!. Petry, Asst. U. ¡3. Atty., both of Trenton, N. J. Before BUFFINGTON, DAVIS, and THOMPSON, Oireuit Judges. THOMPSON, Circuit Judge. This is an appeal from a conviction and sentence -by the District Court for the District of New Jersey upon an indictment charging the defendant with transportation and possession of 215 gallons of distilled spirits, being intoxicating liquor containing more than one-half per cent, of alcohol and fit for use for beverage purposes. By agreement the case was tried before the District Judge without a jury. The testimony showed that a police officer of Jersey City, while patrolling the Newark turnpike, noticed a truck, loaded with large packing eases, which aroused his suspicions. He stopped the truck, noticed that the license tags were not fastened securely, examined one of the cases, and found 45 five-gallon cans of alcohol. The alcohol tested 92.7 per cent, by volume, and was fit for bevei-age purposes. Defendant, the driver of the truck, testified that he had taken a load of lumber from New York to Newark; that he was hired by a stranger to take a load back to New York; that the truck was loaded in his absence; and that he had no knowledge that the load concealed alcohol. He testified that the truck did not belong to him. It is undisputed that the seizure was made solely qn suspicion, and that, when the officer discovered the violation, he knew that the seizure would be turned over to the. federal authorities for prosecution. The defendant moved to suppress the evidence on the ground that there was no. probable cause for the search. That motion was denied, and the case went to the judge on the evidence without exception to the denial of the motion to suppress. The judge found the defendant guilty, and sentenced him to fine and imprisonment. The defendant must be deemed to have abandoned his objections and have rested his ease upon the evidence. In the absence of manifest injustice, this court will not review, upon appeal, alleged erroneous rulings of the trial court to which no exceptions have boon taken. Bilboa v. United States (C. C. A.) 287 F. 125; Finley v. United States (C. C. A.) 256 F. 845. Wo think the evidence presented sustains the finding of the defendant’s guilt. The judgment is affirmed. Question: Did the court determine that the parties had standing? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_initiate	B	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. MITCHELL, Secretary of Labor v. JOYCE AGENCY, Inc. No. 10936. United States Court of Appeals Seventh Circuit. March 29, 1954. Rehearing Denied April 23, 1954. Stanford Clinton, Robert A. Sprecher, Pritzker, Pritzker & Clinton, Crowley, Sprecher & Weeks, Frank A. Karaba, Chicago, Ill., of counsel, for appellant. Stuart Rothman, Sol., Bessie Margolin, Chief of Appellate Litigation, U. S. Department of Labor, Washington, D. C., Herman Grant, Regional Atty., Department of Labor, Chicago, Ill., E. Gerald Lamboley, Harold S. Saxe, Attys., U. S. Department of Labor, Washington, D. C., for appellee. Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges. SCHNACKENBERG, Circuit Judge. This is an appeal by the defendant, Joyce Agency, Inc., from a judgment entered on May 7, 1953, by the United States District Court for the Northern District of Illinois, Eastern Division, finding that the defendant has violated sections 7 and 15(a) (2) of the Fair Labor Standards Act of 1938, as amended, Act of June 25, 1938, c. 676, 52 Stat. 1060; 29 U.S.C.A. § 201 et seq., as amended, 63 Stat. 910, and ordering, pursuant to section 17, that the defendant be enjoined from further violating the provisions of section 15(a) (2) of the Act. The question for decision is whether defendant’s employees were engaged in interstate commerce or in the production of goods for interstate commerce at four warehouses of Goldblatt Bros, and at defendant’s central office, so as to bring them within the coverage of the act. From the parties’ stipulation of facts the following situation appears to have existed at all times hereinafter mentioned. Defendant is an Illinois corporation with its central office at 343 South Dear-born Street, Chicago. It engages in the business of furnishing watchman, guard, detective, fire inspection and shopping service to Goldblatt Bros. Inc., hereinafter called “Goldblatt”, and employs 72 persons. Goldblatt owns and operates a chain of 14 retail department stores. Of these stores, 10 are in the city of Chicago and one in each of the cities of Joliet, Illinois, Hammond, Gary, and South Bend, Indiana. It has a central office in Chicago, Illinois, where the administrative work in connection with Goldblatt’s organization is performed, including the purchase of various kinds of merchandise usually found in a large department store. To service its 14 department stores, Gold-blatt maintains in Chicago, Illinois, warehouses at 3913 South Wentworth Avenue, 3161 South Ashland Avenue, 201 East 63rd Street, and 328 South Wabash Avenue. At these warehouses goods are received and stored and thereafter shipped to the defendant’s various retail stores. Most of the goods received are from points outside Illinois and a substantial part of the goods shipped to retail stores is to those located in Indiana. At one of the warehouses, which is known as the Ashland warehouse, there are also a furniture renovating shop, a radio and television clinic, a carpet and linoleum department, and a sewing machine department, as well as a garage where nine persons are employed by Goldblatt in maintaining its motor transportation fleet. Defendant’s employees include guards and watchmen who guard the warehouses and their contents against all risks, including fire, and the loading and unloading of goods on the loading platforms of the warehouses, check all packages being carried out, keep records of the names of people working after closing hours for the use of the watchmen, open railroad doors to receive freight cars during the night, control ingress and egress of trucks in and out of the garage, and about 5 A. M. check out a truck carrying advertising material to the Indiana stores. Certain guards check the locks and seals on trucks before permitting them to unload or to leave the warehouses when loaded. Guards performing this particular service will be hereinafter referred to as the “seal-checking guards”. Defendant’s employees do not physically handle the goods received or shipped, except insofar as they may handle stolen goods recovered by them, valued at approximately $300.00 per year. The furniture renovating shop reconditions, upholsters, repairs, replaces broken parts, assembles, refinishes and polishes furniture which has been damaged while on display in the stores or in transit. The clinic removes television and radio sets from their cases, repairs new, display and customers’ sets. The carpet and linoleum department cuts carpets and linoleums to size, edges and binds carpeting and prepares carpets and linoleum for laying. The sewing machine shop unpacks sewing machines and their accessories and cabinets, whereupon it attaches the accessories to the machines and the latter are tested and then installed in cabinets or portable cases. Defendant has two watchmen at Gold-blatt’s Lexington bakery and the parties agree that their activities constitute production of goods for commerce and hence they are covered by the act. Defendant employs about ten persons in its central office. They perform administrative work in connection with defendant’s furnishing watchman, guard, detective, fire inspection and shopping service to Goldblatt. They hire, assign and direct the work of all employees employed by defendant in Goldblatt’s warehouses and stores. At the central office employees maintain all the books and records in connection with defendant’s business. Defendant’s payroll is kept there and from there weekly bills are sent to Goldblatt for the payroll plus social security and unemployment compensation contributions, the latter of which is sent by defendant to the State of Illinois or the State of Indiana and the United States Collector of Internal Revenue. At the central office, as a part of her duties, one employee communicates with the various employees of defendant stationed in the Goldblatt warehouses and stores and advises them when a truck will arrive at a warehouse after closing time. When a bad check is cashed in a Goldblatt store, that fact is telephoned to this woman, who, in turn, telephones the same information to defendant’s detectives in all Goldblatt stores. There is a direct telephone line from the central office to all Goldblatt stores and warehouses. Counsel for both parties have in their briefs treated the Fair Labor Standards Act of 1938, as subsequently amended, including the 1949 amendment to section 3 thereof, 29 U.S.C.A. § 203, as governing this case. Under the plain language of the act we are convinced that plaintiff was required to show that Goldblatt was engaged in the production of goods for interstate commerce and that defendant’s employees now under consideration were engaged in occupations directly essential to such production or that they were employees engaged in interstate commerce. Engebretsen v. E. J. Albrecht Co., 7 Cir., 150 F.2d 602, at page 604. Plaintiff contends that the Goldblatt warehouse employees are engaged in “handling” and “working on” goods intended for interstate shipment, which, under the definition of “produced” in section 3(j) and the decisions of this court and of the United States Supreme Court, constitutes “production of goods for commerce”, and that the employees of defendant, which furnishes the guard, watchman, detective, and fire inspection service for these warehouses, are engaged in a “closely related” process or occupation “directly essential” to such production within the meaning of section 3(j) and are, therefore, engaged in producing goods for commerce. Section 3(j), as amended, reads as follows: “(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.” As to the work done in the furniture renovation shop, television and radio clinic, carpet and linoleum and sewing machine shops, there is no production. Such work constitutes the rendering of services upon articles already produced. Insofar as these activities pertain to goods theretofore sold to Goldblatt’s customers, they fall within the exemption of a retail servicing occupation in accordance with the Regulations issued by the Wage and Hour Division of the Department of Labor, which provide in Section 779.14(c) in part as follows: “Work performed on the customer’s own goods where the completed job will not result in the creation of a different product from that which the customer brought in will be considered as ‘services’ for purposes of the exemption, and, if recognized in the particular industry as retail services, will be considered as such in determining the applicability of section 13(a) (2). For example, the recapping of a tire for a customer, the reupholstering of a chair for a customer, the repairing of an automobile for a customer regardless of the degree of repairs, the rebuilding of a pair of shoes for a customer, the rebuilding of a typewriter for a customer, will be regarded as the performance of services for purposes of the application of Section 13(a) (2) exemption to retail or service establishments and employees employed by them.” As to those activities relating to Gold-blatt's own goods, the work done in the clinic and shops does not create a different product, and hence does not constitute production. From a consideration of the processes occurring in the warehouses it is inescapable that there is physical touching by Goldblatt’s employees of the goods in the warehouses which are intended for movement in interstate commerce. Plaintiff contends also that these goods are “worked on” by Goldblatt employees in the warehouses. The words “handled” or “worked on” include every kind of incidental operation preparatory to putting goods into the stream of commerce. But there is a distinction between handling in transportation, on the one hand, and producing, on the other hand, which is put to naught by a contention such as plaintiff’s that by definition everyone who handles goods is thereby made a producer. As was said in Western Union Tel. Co. v. Lenroot, 323 U.S. 490, at page 504, 65 S.Ct. 335, at page 342, 89 L.Ed. 414: “One would not readily impute such an absurdity to Congress; nor can we assume, contrary to the statute, that ‘produced’ means one thing in one section and something else in another. To construe those words to mean that handling in carriage or transmission in commerce makes one a producer makes one of these results inevitable. Congress, we think, did not intend to obliterate all distinction between production and transportation.” In the warehouses, Goldblatt’s employees receive, store, in some cases split up large packages of goods into smaller ones, and re-ship. These are not acts of production. They do nothing to affect the character of the articles themselves. Such handling is not production. There is no “working on” the goods by these employees. It will be noted, therefore, as a matter of fact that in the case at bar the employees of Goldblatt do not produce any goods in these warehouses. There being no production in the warehouses by Goldblatt employees, it cannot be said that any duties of defendant’s employees on said premises are performed in any process or occupation related or essential to the production of goods, within the meaning of section 3 (j). In Engebretsen v. E. J. Albrecht Co., supra, relied upon by plaintiff, this court concluded that a janitor and watchman performed a service essential to an operation which the court found to be the production of goods for commerce, and, therefore, held that that employee was covered by the act. That case is not controlling here where we find there was no production of goods for commerce carried on in the Goldblatt warehouses. Plaintiff also contends that the receiving, handling, and shipping of goods interstate at the Goldblatt warehouses constitutes engagement “in commerce” and that the guards, watchmen, detectives and fire inspectors, who are employed by the defendant to furnish a highly integrated fire and theft protection service at such warehouses, who control the departure of interstate shipments and who protect the actual transportation of the goods, are “engaged in commerce”. The real test as to defendant’s employees is whether they (the employees themselves) are engaged in an interstate commerce activity. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. We must look to the employee’s activity rather than the employer’s activity, so far as “ ‘engaged in commerce’ ” determines liability. Engebretsen v. E. J. Albrecht Co., supra, 150 F.2d at page 605. At the outset of this part of the discussion, it is to be noted that the seal-checking guards examine the seals on trucks before incoming trucks are unloaded and after outgoing trucks are loaded and sealed. Until incoming trucks are actually unloaded and the contents deposited on the warehouse platform they are in interstate commerce, and after outgoing trucks are loaded and sealed they are also in interstate commerce. The seal-checking guards in performing their function of checking these seals in the interest of security of the contents of the trucks are engaged in interstate commerce and are, therefore, subject to the act. Walling v. Goldblatt Bros., Inc., 7 Cir., 128 F.2d 778, at page 782. Defendant admits in its brief that some of the Goldblatt warehouse employees are involved in interstate commerce (appellant’s brief, 50). The facts in this case show, however, that none of the employees of defendant working at the warehouses, except the seal-checking guards, is himself engaged in commerce. It will be noted that section 7(a) of the act, 29 U.S.C.A. § 207(a), provides: “(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce * * * for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” In Carrigan v. Provident Trust Co. of Philadelphia, 3 Cir., 153 F.2d 74, the court, in considering whether a bank guard was subject to the act, said, beginning at page 74: “In § 8(j), 29 U.S.C.A. § 203 (j), ‘production’ is broadly defined * * . ‘Commerce’, on the other hand, is narrowly limited in § 3(b), 29 U.S.C.A. § 203(b) * * “An important distinction between the two definitions is evident. Congress described ‘production’ to include acts merely necessary to the production of goods. ‘Commerce’, on the other hand, is so closely circumscribed that acts merely necessary to commerce are not included. The wide variation in the scope of the two terms has been frequently noted.” The court cited McLeod v. Threlkeld, 319 U.S. 491, at page 497, 63 S.Ct. 1248, 87 L.Ed. 1538, saying that there it was declared: “that ‘The test under this present act, to determine whether an employee is engaged in commerce, is not whether the employee’s activities affect or indirectly relate to interstate commerce but whether they are actually in or so closely related to the movement of the commerce as to be a part of it. Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase, “production of goods for commerce.” ’ ****** “Only one question is involved here, namely, is appellant ‘engaged in commerce’ within the meaning of the Fair Labor Standards Act. “This court held in Blumenthal v. Girard Trust Co., 3 Cir., 1944, 141 F.2d 849, that a caretaker or janitor of a building, containing at least one tenant engaged in interstate commerce, was not an employee within the terms of the Act. * * * “As the courts have consistently maintained, it is the work of the employee and not the nature of his employer’s business that determines the applicability of the Act. * * * That the employer’s entire business is not interstate in character is unimportant so long as a substantial part of the employee’s work relates to the interstate movement of goods. Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460. That a building is wholly occupied by an employer, whose business is partly interstate in character, or only partially occupied by such an employer, is immaterial with respect to the status under the Act of a building guard. It would seem that the instant case cannot be distinguished in character of fact from its predecessors in this court unless appellant’s duties of guarding appellee’s bank building are ‘so closely related to the movement of the commerce as to be a part of it.’ * * * “But for a rather remote possibility that the law would be violated by a person or persons violently and forcefully breaking into the bank premises with the intent of robbery, or that some emergency should arise as a fire or leaky pipe, the watchman’s services could have no effect upon commerce, and even then the effect of the watchman’s acts would be negative and not acts in commerce. He had no hand whatever in the affirmative acts which constitute commerce.” There is nothing stated in Carrigan v. Provident Trust Co. of Philadelphia, supra, which is inconsistent with the holding in Walling v. Goldblatt Bros., Inc., 7 Cir., 128 F.2d 778. Accordingly, we hold that none of the defendant’s employees in the warehouses, with the exception of the seal-checking guards, is covered by the act. As to the employees in defendant’s central office, it appears that there is one employee who gives a substantial part of her time to making and receiving telephone calls to and from defendant’s guards at the Goldblatt warehouses and stores, some of the latter being in the State of Indiana. It will be noted that these telephone calls are from and to persons entirely in the service of defendant. When employees talk to each other in performing their duties for their employer, they are not engaged in commerce as that word is used in the act now under consideration. That is true whether they sit at adjoining desks or are at the opposite ends of a telephone wire and regardless of whether that wire crosses state lines. This is still true even though another, who owns the- wire, may be engaged in commerce in the transmitting of the sound of- human voices over that wire. Section 3 of the act, 29 U.S.C.A. § 203, declares that “ ‘Commerce’ means trade, commerce, transportation, transmission, or communication” interstate. As was said in Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, at page 398: “Transportation is only a part of it. Trade is another part, and according to the old maxim, it takes two to make a trade. Importer as well as exporter, buyer as well as seller, is a participant; and ordering and paying for goods are included.” If it takes two to make a trade, these two must be the employer and another person or firm with which he is dealing. Communication means from one person to another; that is from the employer to some other person or firm. It cannot reasonably be said to mean a communication by one of the employees of an employer to another employee of the same employer. In the case at bar, the person doing the telephoning to points in another state did not call anyone outside of the defendant’s own staff of employees. There was no communication within the definition of commerce contained in the act. Neither by the statutory definition nor as commonly understood does “commerce” include communication by word of mouth between the servants of a common employer in the course of the latter’s business. Telephoning by an employee to persons not in the employer’s organization, on behalf of his employer, for the benefit of a third party with whom the employer has a contract for such service, would be an act in commerce. But that is not the factual situation which confronts us. It follows that the telephoning done by the employee in question does not bring her under the act. This conclusion is strengthened by the fact that this particular employee is not engaged in selling and delivering across state lines or at buying and receiving across state lines, and hence would not fall within the category referred to in Fleming v. Jacksonville Paper Co., supra, 128 F.2d at page 398, where the court said: “Those who work either at selling or delivering across State lines, or at buying and receiving across State lines, are employed in commerce, whether they write the letters, keep the books, or load and unload or drive the trucks.” There are other employees in the central office of defendant. Their duties include the supervision of the various guards and watchmen stationed by defendant in the Goldblatt warehouses and stores, as well as the keeping of payroll records and the making of payments to said employees of salaries, less tax deductions. Inasmuch as the only employees in this group serviced by the central office who are engaged in interstate commerce are the seal-checking guards, of whom there are only three, and two watchmen at the Lexington bakery, which is engaged in production, and since the record is silent as to the amount of time actually expended by the employees in the central office in connection with these five employees, the plaintiff has not established that in connection therewith central office employees are devoting a substantial part of their time to these five employees, Walling v. Jacksonville Paper Co., 317 U.S. 564, at page 572, 63 S.Ct. 332, 87 L.Ed. 460, and hence this court cannot say that the said central office employees are covered by the act. In all other respects it is clear on this record that none of the central office employees of defendant is subject to the act. Conclusion. For the reasons above stated, we conclude that as to the seal-checking guards the decree of the court below is affirmed and in all other respects it is reversed. Affirmed in part; reversed in part. 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_respond1_5_3	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 "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant. Ronald Paul FIELDS, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Brenda SOLOFF, Robert M. Morgenthau, Sterling Johnson, Jr., Lewis Halpern, Robert Siberling, J.D., 1 & 2 Wardens, Hon. Robert Abrams, and The New York State Office of Court Administration, Defendants-Appellees. No. 507, Docket 90-7240. United States Court of Appeals, Second Circuit. Argued Nov. 9, 1990. Decided Dec. 11, 1990. Ronald Paul Fields, New York City, pro se. Thomas P. Litsky, Asst. Dist. Atty., New York County, New York City (Robert M. Morgenthau, Dist. Atty., New York County, Marc Frazier Scholl, Asst. Dist. Atty., New York City, of counsel), for defendants-appellees Morgenthau, Johnson, Halpern and Siberling. Frederic L. Lieberman, Asst. Atty. Gen. of State of N.Y., New York City (Robert Abrams, Atty. Gen. of State of N.Y., New York City, of counsel), for defendant-appel-lee Soloff. Before KAUFMAN, KEARSE and McLaughlin, circuit judges. IRVING R. KAUFMAN, Circuit Judge: The purpose and powers of grand juries have been subject to debate for many years. Over three hundred years ago, John Somers, later Lord Chancellor of England, explained the role of the grand jury: [T]he truth of such inquisitions should be put in the hands of Persons of understanding, and integrity, indifferent and impartial, that might suffer no man to be falsely accused, or defamed, nor the lives of any to be put in jeopardy, by the malicious conspiracies of great or small ... For these necessary, honest ends was the institution of Grand Juries. Somers, The Security of English-Mens Lives, or The Trust, Power and Duty of Grand Jurys of England 13 (1681). Grand juries have not always acted as safeguards against unjust prosecutions. Originally, their sole purpose was to initiate prosecutions by investigating crimes in their communities and by accusing purported wrongdoers. The modern American counterpart retains aspects of both functions. Appellant pro se Ronald Fields seeks affirmation of the inviolability of the grand jury’s traditional investigatory powers. He alleges that his constitutional rights were violated when the supervising state judge and prosecutors imposed restrictions on actions he undertook while serving on a New York State grand jury. Since, however, there is no federal constitutional right to indictment by a state grand jury, and because the doctrine of immunity bars his federal civil rights action against state officials for their court-related activities, the district court properly dismissed Fields’ claims. BACKGROUND Appellant Fields was selected to serve on a New York County Special Narcotics Grand Jury between September 14 and October 9, 1987. He claims that in 1983, while serving on a different grand jury, he became aware of allegedly indictable felony offenses committed by New York County District Attorney Robert Morgenthau. The 1983 grand jury had investigated the circumstances surrounding the death of Michael Stewart, a young black man who died while in the custody of transit police. According to newspaper accounts submitted by appellant in connection with the present action, Fields, while serving on the 1983 grand jury, became suspicious that the District Attorney’s office had intentionally presented a weak case. He then independently investigated the matter and shared his assessments with the other grand jurors involved in the Stewart inquiry. The presiding state court judge eventually dismissed the charges because of Fields’ interference. The transit officers were later indicted, tried and acquitted. While serving on the 1987 grand jury, Fields attempted to initiate criminal proceedings against District Attorney Morgen-thau. While he did not cite specific criminal violations, appellant alleged generally that Morgenthau promoted an illegal policy of preventing investigation of police brutality claims. Fields asked Assistant District Attorney (“ADA”) Lewis Halpern, the “legal advisor” to the grand jury, for permission to present materials about his allegations. This request was denied. He then asked the supervising judge, Acting New York Supreme Court Justice Brenda Soloff, to instruct the grand jury that it had the authority to originate complaints independently of the prosecutor. Justice Soloff refused and issued an oral restraining order prohibiting Fields from communicating with his fellow jurors about matters other than those brought to their attention by the prosecutor. Fields appeared before the Appellate Division seeking an expedited appeal, presumably from Justice Soloff’s oral ruling. He asserts that when he argued this motion, Justice Theodore Kupferman informed him that oral orders were not binding authority. Relying on Justice Kupferman’s comment, Fields distributed information packets containing articles about the general and historical aspects of grand jury service to the other grand jurors. Justice Soloff then directed ADAs Lewis Halpern and Robert Siberling, along with two unnamed court wardens, to confiscate the packets, which they proceeded to do, and to enjoin the jurors from discussing the content of the documents. In response, Fields and ten other grand jurors filed a pro se Article 78 petition for a writ of mandamus to require Justice So-loff to return their property and allow them to discuss related matters freely. The Appellate Division dismissed their petition, as did the New York State Court of Appeals. Fields then sought relief in federal court pursuant to 42 U.S.C. § 1983, which subjects government officials to personal liability for damages when, acting under color of state law, they deprive an individual of “any rights, privileges, or immunities secured by the Constitution.” He claimed that Justice Soloff and the state prosecutors violated his federal constitutional rights under the First, Fourth, Tenth and Fourteenth Amendments and sought compensatory and punitive damages, as well as injunctive and declaratory relief. All of the served defendants moved to dismiss the action. Magistrate Nina Ger-shon filed a report and recommendation, which was adopted by Judge David Edel-stein. The district court dismissed appellant’s claims with prejudice. DISCUSSION Fields’ allegations relate to restrictions imposed upon him during his service as a New York State grand juror. Before addressing the merits of his appeal, we pause to consider the historical foundation of grand jury powers as they relate to his claims. Beginning in the Twelfth Century, English grand juries functioned exclusively as the King’s investigatory and accusatory arm. They were expected to reach out into the community, retrieve information of wrongdoing and report to the court. Indictments were based solely on the grand jurors’ rendition of local gossip, under oath, before a judge. See R. Walker & M. Walker, The English Legal System 14-15 (1972). It is this historic practice of investigating and generating accusatory reports, called “presentments,” which constitutes what has come to be known as the grand jury’s “sword” power. Slower to develop was the grand jury’s role as a buffer against government prosecution — its “shield” function. In the Fourteenth Century, grand juries began considering charges brought by outside sources, hearing the evidence of others and listening to witnesses. See P. Devlin, Trial by Jury 10-12 (1956). Deliberations began to focus on whether, not merely which, persons under government suspicion should be indicted. By the end of the Seventeenth Century, the grand jury had matured into an independent and formidable power. Juries refused to indict people perceived as innocent, despite intense pressure from the King. No longer instruments of the crown, they began aggressively to defend against biased prosecutions. Grand jury practice expanded to the American colonies, where they devoted most of their time to indictments and presentments. See generally Younger, The People’s Panel: The Grand Jury in the United States, 1634-1941 (1963). Just prior to the American Revolution, they became vigilant in insulating from prosecution colonists who had violated unpopular British laws. It is interesting to see this development occurring in an historic and important case. In 1734, the New York “Weekly Journal” published attacks on New York’s Royal Governor, William Cosby. Cosby sought prosecution of John Peter Zenger, the paper’s printer, for seditious libel but failed to secure an indictment from successive grand juries. Though Zenger was later charged in an information and successfully defended by his lawyer, Andrew Hamilton, protection of his rights began with the grand jury. Kaufman, The Grand Jury — Sword and Shield, The Atlantic 56-57, April 1962. It was this power — the ability to thwart government persecution of innocent citizens — that the framers sought to preserve in the Constitution. The Fifth Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Though courts have interpreted this provision to require grand jury indictments before institution of charges for federal felony offenses, they have not read it to confer plenary indictment power upon the grand jury. See United States v. Cox, 342 F.2d 167, 189 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965) (Wisdom, J. concurring). Because indictments wield the power to ruin lives and reputations, concert of action between the grand jury and the government attorney is a sound precondition. The dangers threatened by unfettered grand jury power were addressed in United States v. Cox. In Cox, a Mississippi federal grand jury sought to abrogate the prosecutor’s authority by indicting two black men on charges of perjury for statements made during a lawsuit against voting authorities. These individuals had testified at trial that local officials prevented them from registering to vote. After the grand jury reported that it was ready to indict the two men on perjury charges, Judge Cox ordered the U.S. Attorney to prepare an indictment for the grand jury and to sign it. When the prosecuting attorney refused, the judge found him guilty of contempt of court and imposed a jail sentence pending his compliance. The Fifth Circuit Court of Appeals reversed, holding that “the affixing or withholding of the signature is a matter of executive discretion which cannot be coerced or reviewed by the courts.” Id. at 172. The relevance of Cox to our opinion is not in its teaching that indictments require consent of the government attorney. More pertinent is Cox’s telling statement about the nature of the checks and balances inherent in our legal system. Not only must the prosecutor wait for the grand jury’s determination before he or she may proceed in a felony case, but the grand jury may not issue an indictment where the prosecutor is opposed. Moreover, the court lacks the power to compel the prosecutor to proceed over his objection. Viewed in this light, the federal grand jury system reflects the structure of our constitutional scheme, requiring, for proper resolution, diffusion of power and the existence of checks and balances. At the state level, the grand jury process varies with the jurisdiction. The Fifth Amendment right to indictment by a grand jury was not incorporated by the Due Process Clause of the Fourteenth Amendment, and, accordingly, does not pertain to the states. See Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884). Because the states are not required to utilize a grand jury before proceeding with a criminal prosecution, many, perceiving the institution as a mere rubber stamp for government charges, have eliminated it entirely. The New York State Constitution continues to guarantee indictment by a grand jury for felony charges. And it is Fields’ right to unrestrained participation in the New York Special Narcotics grand jury that forms the basis of his suit. Article 1, Section 6 of New York’s constitution states that the grand jury’s broad power to inquire and indict shall not be “impaired by law.” New York courts, however, have acknowledged limitations on that power. See, e.g., Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304 (1984) (“Shield Law,” protecting reporters from compelled exposure of their sources, is permissible curtailment of the grand jury). Long a valuable facet of New York’s legal system, the state’s grand jury traces its roots back to the prerevolutionary Zenger episode. Later, in the 1930’s, “runaway” grand juries, skeptical of the district attorney’s integrity, called upon Thomas E. Dewey to investigate corruption at Tammany Hall as a special prosecutor. These efforts, upheld by the state courts, ultimately led to sweeping criminal prosecutions and the demise of that powerful political machine. In the instant case, however, the state courts have enjoined appellant from proceeding against government officials. Fields claims this violated his federal civil rights. When passing on section 1983 claims, a federal court does not resolve disputes regarding the proper application of state law. In this case, it is sufficient to note that the Fifth Amendment’s grand jury guarantee does not extend to the states. Therefore, the operation of a state grand jury need not comply with federal standards. A. The Motion to Dismiss With these basic historical doctrines in mind, we review Judge Edelstein’s order. When considering a motion to dismiss, the court takes to be true all facts alleged by the opposing party. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Green v. Maraio, 722 F.2d 1013, 1016 (2d Cir.1983). And, though a section 1983 claim need only allege that an individual acting under color of state law deprived the claimant of a federal right, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980), certain judicially-created exceptions render public officials immune from suit. Fields claims multiple constitutional violations arose during his tenure as a member of the state grand jury. He alleges Justice Soloff s speech-restrictive or “gag” order, which prevented him from discussing certain matters with his fellow jurors, deprived him of his First Amendment speech and petition rights and his Fourteenth Amendment due process and equal protection rights. Restrictions on his communications with the other grand jurors, he contends, violated his right to act as a member of an independent grand jury, guaranteed by the New York Constitution and, thus, the Tenth Amendment. He also alleges that confiscation of the information packets contravened his Fourth Amendment right against unreasonable searches and seizures. Because judicial and prose-cutorial immunity bar Fields’ suit, however, we need not reach the merits of these claims. B. Judicial Immunity Judicial immunity is by now a well-established doctrine. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967); Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1871). A judge defending against a section 1983 suit is entitled to absolute immunity from damages for actions performed in his judicial capacity. Green, 722 F.2d at 1016; Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). Moreover, “[a] judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’ ” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978) (quoting Bradley, 80 U.S. at 351). Liability will not attach where a judge violated state law by an incorrect decision. Accordingly, Justice Soloff is absolutely immune from suit. Under New York law, she had jurisdiction to supervise the conduct of the grand jury. See, e.g., N.Y. Crim.Proc. § 190.25(6); Stern v. Morgenthau, 62 N.Y.2d 331, 335, 476 N.Y.S.2d 810, 812, 465 N.E.2d 349, 351 (1984); In re Di Cocco, 364 N.Y.S.2d 990, 996, 80 Misc.2d 854 (1975). Even if the speech-restrictive order was improper, Justice Soloff is immune from section 1983 damages because she did not act in the “clear absence of all jurisdiction.” C. Prosecutorial Immunity Claims against the prosecutors were also properly dismissed. Similar to the rule applying to judges, unless a “prosecutor proceeds in the clear absence of all jurisdiction, absolute immunity exists for those prosecutorial activities intimately associated with the judicial phase of the criminal process.” Barr v. Abrams, 810 F.2d 358, 361 (2d Cir.1987). See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). This protection extends to the decision to prosecute as well as the decision not to prosecute. Schloss v. Bouse, 876 F.2d 287, 290 (2d Cir.1989). Prosecutors are only qualifiedly immune from suit when they act in an “investigative” or “administrative” capacity. Id. Appellant asserts that District Attorney Morgenthau unlawfully failed to prosecute official misconduct. Though such neglect may result in public criticism, professional discipline or, under extreme circumstances, criminal charges, civil damages under section 1983 are inappropriate. See Imbler, 424 U.S. at 428-29, 96 S.Ct. at 994. Since Morgenthau’s failure to act was, in reality, a decision not to prosecute, we find him absolutely immune from suit. Determining whether absolute or qualified immunity pertains to claims raised against ADAs Halpern and Siberling, for actions they undertook as legal advisors to the grand jury, presents a more difficult issue. Generally, only conduct falling within the prosecutor’s litigation-related duties deserves the shield of absolute immunity. See Barbera v. Smith, 836 F.2d 96, 101 (2d Cir.1987), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808 (1989). Most other activities are characterized as administrative or investigative and, thus, merit less protection. See id. at 100. Fields alleges the two ADAs illegally carried out Justice Soloff’s order and “allowed” the wardens to seize the information packets from the grand jurors. We are of the view that advising the Special Narcotics Grand Jury about the judge’s orders is so “intimately associated with the judicial phase of the criminal process,” Barr, 810 F.2d at 361, as to fall within that category of absolutely immune activities. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. Similarities in the prosecutor’s role before grand and petit juries support this conclusion. During grand jury proceedings, the government attorney seeks an indictment based on probable cause of criminal conduct. At trial, the prosecutor attempts to prove culpability beyond a reasonable doubt. Both situations involve presenting a case to a jury and, accordingly, comparable latitude of action is sensible and appropriate. Moreover, subjecting prosecutors to liability for their conduct before grand juries raises the same policy concerns upon which absolute immunity for trial-related activities is founded. Defending against civil lawsuits would “cause a deflection of the prosecutor’s energies from his public duties,” Imbler, 424 U.S. at 423, 96 S.Ct. at 991, and would impede the independent exercise of prosecutorial judgment upon which the public relies. See id. Informing the grand jury of the judge’s orders and overseeing the wardens in confiscating Fields’ material were actions undertaken pursuant to their legal obligation to supervise the jury. See N.Y.Crim.Proc. §§ 190.25(6), 190.50(2); People v. DiFalco, 44 N.Y.2d 482, 487, 406 N.Y.S.2d 279, 282, 377 N.E.2d 732, 735 (1978). Accordingly, the ADAs are absolutely immune from suit. Finally, Fields’ claims for unspecified injunctive and declaratory relief are without merit. While prospective injunctive relief is not barred by the doctrine of immunity, Pulliam v. Allen, 466 U.S. 522, 536, 104 S.Ct. 1970, 1977, 80 L.Ed.2d 565 (1984), Fields fails to explain how an injunction is necessary to prevent irreparable injury to his constitutional rights. Id. at 537, 104 S.Ct. at 1978. Fields’ alleged injuries all relate to his service as a New York grand juror.. No federal constitutional provision, however, guarantees a state grand juror’s right to determine independently what evidence or other material will be presented to his or other grand juries. Nor, as we have indicated, do state grand jurors have a federal right to initiate indictments. We have considered appellant’s other claims and find them to be without merit. For the reasons we have set forth, we find Judge Edelstein properly granted the ap-pellees’ motion to dismiss, and we affirm. . Grand juries issue both indictments and presentments. With indictments, the grand jury sets forth felony charges asserted by the government after finding probable cause that a person under investigation has committed the alleged crime. With presentments, the grand jury recommends for prosecution charges it has initiated, or it issues reports condemning official misconduct not rising to the level of a criminal offense. . Robison v. Via, 821 F.2d 913 (2d Cir.1987), does not mandate that qualified immunity attaches to all seizures engaged in by prosecutors. There, the prosecutor was physically present when a police officer removed children from their parents' custody based on a sexual abuse complaint. We found absolute immunity inappropriate under those circumstances because the prosecutor's role in the search and seizure was "not integral to the judicial process itself.” Id. at 918. The instructions of ADAs Halpern and Siberling regarding the confiscated materials, however, concerned the supervision of the grand jury and, thus, constituted activity within the scope of their judicial duties. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant? A. Judge (non-local judge; appellate judge) B. Prosecutor/district attorney (non-local, e.g., special prosecutor) C. Jail/Prison/Probation Official (includes juvenile officials) D. Other judicial official E. not ascertained Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America and Mortimer Todel, as Receiver of the funds, assets and property of Roosevelt Capital Corporation, Plaintiffs-Appellees, v. FRANKLIN NATIONAL BANK, Defendant-Appellant. Nos. 241, 487, Dockets 74-1062, 74-1816. United States Court of Appeals, Second Circuit. Argued Nov. 12, 1974. Decided Feb. 24, 1975. Julius Berman, New York City (Kaye, Scholer, Fierman, Hays & Handler, Sidney Kwestel, New York City, on the brief), for defendant-appellant. Henry A. Brachtl, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. New York, on the brief), for plaintiffs-appellees. Before FRIENDLY, FEINBERG and TIMBERS, Circuit Judges. FEINBERG, Circuit Judge: Franklin National Bank (Franklin) appeals from a decision of the United States District Court for the Eastern District of New York, Leonard P. Moore, Senior Circuit Judge, awarding the United States and Mortimer Todel, the Receiver of Roosevelt Capital Corporation (Roosevelt), summary judgment for approximately $160,000 plus interest. On the present record, as will be seen below, there was no proper basis for jurisdiction in the Eastern District, although appellees Todel and the United States have suggested that this defect can be remedied in the district court. Therefore, we remand the case to the district court for further proceedings consistent with this opinion. I Roosevelt went into receivership because an unsavory group took it over and proceeded to dissipate its assets. In May 1964, the first step in the process began. The looters met with the then owners of Roosevelt in a meeting room at a Franklin branch office, which the Bank had offered as an accommodation to Roosevelt, a Franklin depositor. During the course of the meeting, arranged to effect the sale of the corporation, one of the buyers asked a Franklin official if he would draw two checks totalling $160,000 on the Roosevelt account, payable to the attorney and representative of the then owners of the stock of Roosevelt, so that the sale could be completed. Assuming that everything was proper, Franklin provided the checks and the sale was completed. The looters had managed to buy the corporation with its own money. The interest of the United States stems from the fact that Roosevelt was a “small business investment company” under 15 U.S.C. § 681 et seq., indebted to the United States for approximately $150,000. When it became clear that Roosevelt had breached the conditions of its loan, the United States brought suit against Roosevelt in the United States District Court for the Southern District of New York to recover on its loan, and also asked that a receiver for Roosevelt be appointed pendente lite under 15 U.S.C. § 687c(b). Mortimer Todel was so appointed in March 1965, and given broad powers to collect and preserve the assets of Roosevelt. In August 1966, the United States recovered a default judgment in the action against Roosevelt. Since the dispersion of assets was thorough, the judgment remains unsatisfied. In his effort to collect assets of Roosevelt, the Receiver brought this action against Franklin in May 1967 to recover the money paid out by Franklin to the former owners of Roosevelt at the looters’ behest. The United States joined as co-plaintiff. The suit was filed in the Eastern District of New York and alleged as jurisdictional grounds 28 U.S.C. § 1345 and 15 U.S.C. § 687c for plaintiff United States and 28 U.S.C. § 1331 and the federal receivership appointment for plaintiff Todel. The complaint prayed alternatively for $160,000 for Todel as Receiver of the assets of Roosevelt or for $150,000 for the United States and $10,-000 for Todel. After pre-trial discovery, including the deposition of the bank officer who approved drawing the checks, plaintiffs moved for summary judgment. Judge Moore granted the motion, and it is from this decision that Franklin appeals. II The parties did not raise the issue of jurisdiction in the district court, or in this appeal. Franklin did question the presence of the United States as a co-plaintiff since the Receiver had already been appointed, but Judge Moore found that problem unnecessary to decide because the Receiver was a party to the suit and “his power to bring this action has not been challenged. . . . ” It was not until oral argument before us, when Judge Friendly raised the question in open court, that the parties focused on the jurisdictional issue. They also furnished us with post-argument briefs on the subject. Based on these submissions and our own research, we have come to the conclusion that on this record there was no jurisdiction over this action in the Eastern District of New York. If the United States were a proper party plaintiff, then there would be no question that jurisdiction would' lie. 28 U.S.C. § 1345. But we believe that the United States is not properly in this action. While we have found no cases raising this issue in which a receiver had been appointed under 15 U.S.C. § 687c(b), there are sufficiently analogous situations from which we may draw. For example, in a suit by minority stockholders against a corporation’s officers to recover money fraudulently converted, the Supreme Court stated: If the corporation becomes insolvent, and a receiver of all its estate and effects is appointed by a court of competent jurisdiction, the right to enforce this and all other rights of property of the corporation vests in the receiver and he is the proper party to bring suit, and, if he does not himself sue, should properly be made a defendant to any suit by stockholders in the right of the corporation. Porter v. Sabin, 149 U.S. 473, 478, 13 S.Ct. 1008, 1010, 38 L.Ed. 815 (1893). See also Schmidt v. Esquire, Inc., 210 F.2d 908, 912 — 13 (7th Cir.), cert. denied, 348 U.S. 819, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Coyle v. Skirvin, 124 F.2d 934, 938 (10th Cir.), cert. denied, 316 U.S. 673, 62 S.Ct. 1044, 86 L.Ed. 1748 (1942); Klein v. Peter, 284 F. 797, 799 (8th Cir. 1922); 3 R. Clark, The Law and Practice of Receivers § 786.1 (3d ed. 1959) (hereafter Clark). But see Hanna v. Brictson Mfg. Co., 62 F.2d 139, 143 (8th Cir. 1932). A similar rule prevails in bankruptcy proceedings. 2A Collier, Bankruptcy H 47.05 at 1745 (14th ed. 1968). The original purpose of the receivership here was to collect assets to pay creditors, including the United States. Even the complaint in this action against Franklin impliedly recognizes this in its prayer for relief which calls for, at a minimum, a separate $10,000 recovery for Todel. To collect the assets, Todel was directed to take possession, control and custody of ' all funds, assets, and property of Roosevelt Capital Corporation, wherever located, including but not limited to claims and choses in action, and . . . take all such action as may be deemed necessary or advisable to collect, preserve and protect such assets and to enforce and recover upon any such claims and choses in action by the institution of appropriate legal proceedings or otherwise. Thus, to hold that the creditor United States could still prosecute Roosevelt’s action against Franklin would be inconsistent with the terms of Todel’s original appointment in March 1965. If we allowed the United States as a creditor of the corporation to join as a co-plaintiff then there would be no reason to refuse other creditors in other actions the right to join receivers’ suits until the resulting confusion brought chaos to the administration of receiverships. Cf. In re American Fidelity Corp., 28 F.Supp. 462, 471-72 (S.D.Cal.1939), and the cases cited therein. It is true that the default judgment obtained in August 1966 by the United States against Roosevelt directed the Receiver to continue his efforts to recover assets “for the purpose of satisfying the judgment entered herewith.” From this, the United States argues that Todel was merely a “receiver-in-aid-of-judgment,” so that the cases cited above do not apply. We need not consider whether this argument would be persuasive if Todel’s powers were so limited. They were not; the default judgment relied upon by the United States also continued “in full force and effect” the original order appointing the Receiver with the "broad powers specified therein. Ill Since the United States is not properly a party, any jurisdictional support for bringing the action must be furnished by the Receiver alone. The complaint alleged that such jurisdiction was based on Todel’s status as a receiver appointed by the federal courts and on 28 U.S.C. § 1331, the federal question statute. We will first discuss the federal receivership appointment as a basis for jurisdiction. Prior to the amendment of Fed.R. Civ.P. 66 in 1946 (carried forward as an amendment to 28 U.S.C. § 754 in 1948), a receiver appointed in one federal district could not even bring suit in another district without undergoing the bothersome procedure of preliminary ancillary appointment. See 7 J. Moore, Federal Practice H66.07[l] at 1983-34 (2d ed. 1948) (hereafter Moore). But 28 U.S.C. § 754 now provides that a federal receiver “shall have capacity to sue in any district without ancillary appointment ..” The comments of the Advisory Committee on Rules for Civil Procedure on the then new Rule 66 make clear that giving the receiver automatic capacity to sue was only intended to streamline federal practice, and do not mention any change in the law with respect to jurisdiction. U.S.Code Cong.Serv., 79th Cong., 2d Sess., 1946 at 2365. Thus, the earlier learning with respect to jurisdiction over actions brought by receivers is still relevant. Whether a receiver appointed in one federal district need allege an independent jurisdictional basis to maintain a suit in another federal district remains a question that has not been decided authoritatively. Had Todel been able to maintain this action in the Southern District where he had been appointed receiver, however, no independent jurisdictional ground would have been needed for such action or suit is regarded as ancillary so far as the jurisdiction . is concerned; and we have repeatedly held that jurisdiction of these subordinate actions or suits is to be attributed to the jurisdiction on which the main suit rested . Pope v. Louisville, N. A. & C. Ry., 173 U.S. 573, 577, 19 S.Ct. 500, 501, 43 L.Ed. 814 (1899). See also Esbitt v. Dutch-American Mercantile Corp., 335 F.2d 141, 142-43 (2d Cir. 1964); Roof v. Conway, 133 F.2d 819, 823 (6th Cir. 1943); 7 Moore, If 66.07[3] at 1938. This rule is well settled, and the reasons for it are clear. The ancillary suit is cognizable in the court of the main suit regardless of the citizenship of the parties or the amount in controversy because the res over which the receiver took control is already before the court. Murphy v. John Hofman Co., 211 U.S. 562, 569, 29 S.Ct. 154, 53 L.Ed. 327 (1909); White v. Ewing, 159 U.S. 36, 38-39, 15 S.Ct. 1018, 40 L.Ed. 67 (1895). Thus, since the receivership was already before the Southern District, there would have been jurisdiction in that court. But this reasoning does not apply to this suit brought in the Eastern District. The treatise writers seem to agree. Discussing this analysis, Professor Moore states “Whether these theories of ancillary jurisdiction will support an action by or against the receiver in a federal court other than the receivership court is doubtful.” 7 Moore 166.07 [3] at 1940. Similarly, Professors Wright and Miller state that “a federal receiver appointed under Rule 66 may sue in any district court without any need for the appointment of an ancillary receiver, provided, of course, that the court has subject matter jurisdiction,” and that “It is uncertain whether ancillary jurisdiction only exists in the appointing court, although this probably is the case.” 12 C. Wright and A. Miller, Federal Practice and Procedure § 2984 at 31, § 2985 at 45 (1973) (footnotes omitted). To the same effect, see 1 Clark § 320(h). What case analysis we have found also supports this result. The Supreme Court has not spoken directly on the issue but has hinted that an independent jurisdictional basis is necessary. In Gableman v. Peoria, D. & E. Ry., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220 (1900), a receiver appointed in the Southern District of Illinois tried to remove a suit brought against him in the Indiana state courts to the Circuit Court for the District of Indiana. The Supreme Court denied removal, holding that the case was not one that arose under the laws or Constitution of the United States merely because of the presence of a federally appointed receiver. In Raphael v. Trask, 194 U.S. 272, 24 S.Ct. 647, 48 L.Ed. 973 (1904), the question presented was whether an action could be maintained in the Southern District of New York without diversity on the theory that it was ancillary to a pending suit in the Utah Circuit Court. The Court said that: [W]e are unable to find any precedent in the reported cases or text books which will maintain this bill in that aspect. Ancillary bills are ordinarily maintained in the same court as the original bill is filed, with a view to protecting the rights adjudicated by the court in reference to the subject-matter of the litigation, and in aid of the jurisdiction of the court, with a purpose of carrying out its decree and rendering effectual rights to be secured or already adjudicated. 194 U.S. at 278, 24 S.Ct. at 649. In Mitchell v. Maurer, 293 U.S. 237, 55 S.Ct. 162, 79 L.Ed. 338 (1934), the Court held that where the primary receivership was in a state court there must be independent jurisdictional grounds for an action for appointment of an ancillary federal receiver. It also posed the question whether the same rule applied when the primary receivership was in the federal court. While the Court did not answer, it noted in a footnote that Raphael v. Trask “intimated that the jurisdiction of a federal court cannot be based upon an original suit in another federal court,” 293 U.S. at 243 n. 3, 55 S.Ct. at 165, and that the lower courts were divided on the question. Since Mitchell, the lower courts are less divided. The most recent case we have found that directly treats the issue is Kelley v. Queeney, 41 F.Supp. 1015 (W.D.N.Y.1941). Plaintiffs in that case, who were trustees appointed in the Eastern District of Pennsylvania, sued in New York to remove defendants as voting trustees of the corporation. In the face of defendants’ motion to dismiss for lack of diversity, plaintiffs asserted that the district court in New York had “jurisdiction over this action as ancillary” to the district court in Pennsylvania, and thus there need not be diversity of citizenship. The district judge disagreed: Without showing diversity of citizenship, ancillary action can be brought only in the court in which the main action was brought wherein the plaintiffs were appointed trustees, and this was the Eastern District of Pennsylvania. In Sullivan v. Swain, C.C., 96 F. 259, it was said: “Where a receiver * * * brings an action in the court which appointed him, such court has jurisdiction of the action * * ; but in such a case the jurisdiction is upheld on the ground that the action is but auxiliary to * * the original suit * * *. This ground of jurisdiction, however, manifestly does not exist where the receiver sues in a jurisdiction other than that of his appointment.” 41 F.Supp. at 1018. While this court has not decided the point, in United States ex rel. Sutton v. Mulcahy, 169 F.2d 94 (2d Cir. 1948), cert. denied, 337 U.S. 956, 69 S.Ct. 1526, 93 L.Ed. 1755 (1949), a habeas action attacking a contempt order on the ground that the charging court was without jurisdiction, we strongly indicated that an independent jurisdictional ground would be necessary. The lower court, in Menashe v. Sutton, 71 F.Supp. 103, 105 (S.D.N.Y.1947), an action ancillary to a Hawaii receivership, had held that the presence of a federally appointed receiver was sufficient grounds for jurisdiction, and later held Sutton in civil contempt. In the habeas action, we held that jurisdiction, once litigated, was ordinarily immune from collateral attack and affirmed the denial of the writ. 169 F.2d at 96. In two separate opinions, however, Judge Clark, concurring, and Judge Frank, dissenting, both stated that they believed the district court had been incorrect in allowing the suit without an independent basis for jurisdiction. 169 F.2d at 96, 97 n.l. Apparently, Judge Rif kind agreed, for when the case was thereafter assigned to him for defendants’ motion to dismiss for lack of jurisdiction, he allowed the complaint to be corrected nunc pro tunc to show diversity. Menashe v. Sutton, 90 F.Supp. 531, 533 (S.D.N.Y.1950). Even if the Eastern District court did not have general ancillary jurisdiction over the claim of this federally appointed Receiver, the United States argues that this case “is so imbued with the interest of the Government” that it arises under the laws of the United States and therefore jurisdiction is available under 28 U.S.C. § 1331. We do not agree. As we noted above, Gableman v. Peoria, D. & E. Ry., supra, makes clear that the presence of a federally appointed receiver does not make the case one arising under the laws of the United States. See also 7 Moore If 66.07[3] at 1940 n.9, H66.07[4] at 1942. Nor does Todel’s claim against Franklin for an “improper and unlawful” payment from Roosevelt’s account raise any issues of federal law. The statute under which Todel was appointed, see note 5 supra, does not seem to expand his rights beyond those of other equity receivers. 15 U.S.C. § 687c(a) gives the Small Business Administration authority to apply to the district court for an injunction or other relief for violation of the provisions of the small business investment program and it states that “such courts shall have jurisdiction of such actions . . ..” Subsection (b), on the other hand, only permits the court “as a court of equity” in such proceedings to take jurisdiction of the small business investment company and its assets and to “appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed.” The section says nothing about the power of the receiver to invoke the jurisdiction of the federal courts in general. The legislative history of subsection (b), added in 1961, does not indicate the contrary. See 2 U.S. Code Cong. & Admin.News, 87th Cong., 1st Sess. 1961 at p. 3064 (S.Rep. No. 801). The drafters noted that subsection (a) continued “the existing authority of the Administration to apply to Federal district courts for injunctions . . ..” They said that the new subsection (b) provided “specific authority (not contained in the present act) for the court in such a proceeding to appoint a trustee or receiver to take control of the small business investment company where the court deems it necessary.” There was not a word about the jurisdiction of other federal courts to entertain receivers’ suits. Thus, we hold that Todel's second ground for jurisdiction, 28 U.S.C. § 1331, must also fail. Apparently recognizing that we might find no jurisdictional basis for a suit in the Eastern District, appellees have urged that we not order outright dismissal. Instead they ask us only to remand to the district court for possible dismissal there so that the pleadings might be amended to cure the jurisdictional defect. They suggest that the receivership might be discontinued, thus leaving the United States as the sole plaintiff and the suit properly in the Eastern District. Or, they note that under 15 U.S.C. § 687c(c), enacted in 1966 (after Todel was appointed as receiver) and reproduced in the margin, the Small Business Administration can act as a receiver for a small business investment company. They claim that the Administration could now be appointed nunc pro tunc to replace Todel as receiver and the action then continued in the Eastern District under 28 U.S.C. § 1345. We express no view on these suggestions or on others appellees may offer, leaving them for the district court to consider. At this time we hold only that on the record before us the United States District Court for the Eastern District of New York did not have jurisdiction over this suit, and we remand for further action consistent with our opinion. . Sitting by designation as a district judge in the Eastern District of New York. . Some of the culprits have been convicted of criminally misapplying Roosevelt’s funds. United States v. Crosby, 69 Cr. 404 (S.D.N.Y., judgments of conviction Mar. 26, 1971), aff’d in open court, 71-1516 (2d Cir. Sept. 16, 1971), cert. denied, 405 U.S. 917, 92 S.Ct. 938, 30 L.Ed.2d 786 (1972). . This official is no longer employed by Franklin. . United States v. Roosevelt Capital Corp., 65 Civ. 162 (S.D.N.Y. Aug. 3, 1966). . At the time of Todel’s appointment, § 687c provided: (a) Whenever, in the judgment of the Administration, a licensee or any other person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter, or of any rule or regulation under this chapter, or of any order issued under this chapter, the Administration may make application to the proper district court of the United States or a United States court of any place subject to the jurisdiction of the United States for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, rule, regulation, or order, and such courts shall have jurisdiction of such actions and, upon a showing by the Administration that such licensee or other person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order, shall be granted without bond. The proceedings in such a case shall be made a preferred cause and shall be expedited in every way. (b) In any such proceeding the court as a court of equity may, to such extent as it deems necessary, take exclusive jurisdiction of the licensee or licensees and the assets thereof, wherever located; and the court shall have jurisdiction in any such proceeding to appoint a trustee or receiver to hold or administer under the direction of the court the assets so possessed. . There had been a prior civil suit by the Receiver and the United States against several defendants, Franklin among them, attempting to recover the monies looted from Roosevelt. Franklin successfully moved to dismiss the claim against it because of improper venue in the Southern District. See United States v. Crosby, Memorandum of Jan. 23, 1967, 66 Civ. 2026 (S.D.N.Y.). . Cf. United States v. D’Amato, 507 F.2d 26 (2d Cir. 1974). . Todel tried to but was blocked because of venue problems. See note 6 supra. . The cases cited for the proposition that the receiver needed an independent jurisdictional basis included Winter v. Swinburne, 8 F. 49 (C.C.E.D.Wis.1881), and Sullivan v. Swain, 96 F. 259 (C.C.S.D.Cal.1899). A case cited for the contrary conclusion was Bluefields S.S. Co. v. Steele, 184 F. 584, 587 (3d Cir. 1911). There, plaintiff sought the appointment of an ancillary receiver to prosecute Bluefield’s antitrust suit. While the court stated that it had the power to appoint the receiver regardless of a showing of diversity, the language was purely dictum since the parties were of diverse citizenship and the court refused to make the appointment anyway on the basis that the grounds for the appointment were insufficient. . Section 687c(c) provides: The Administration shall have authority to act as trustee or receiver of the licensee. Upon request by the Administration, the court may appoint the Administration to act in such capacity unless the court deems such appointment inequitable or otherwise inappropriate by reason of the special circumstances involved. . Weinmann, Receiverships Under the Small Business Investment Act, 25 Bus. Law. 237 (1969). . We note that even if the district court must dismiss this action plaintiffs are not without a remedy in the state courts. Even if the statute of limitations has otherwise run, N.Y.C.P.L.R. § 205(a) (McKinney 1972) allows the parties six months to begin anew. See Brown v. Bullock, 17 A.D.2d 424, 235 N.Y. S.2d 837, 840 (1962). Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_state	12	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Plaintiff-Appellee, v. Sheldon B. FERNANDEZ, Defendant-Appellant, and Marlene J. Mira, Defendant. No. 84-1909. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1985. Decided April 23, 1985. Filed Aug. 5, 1985. Kevin P.H. Sumida, Honolulu, Hawaii, for plaintiff-appellee. Craig K. Furusho, Jeffrey Sia, Honolulu, Hawaii, for defendant-appellant. Before FARRIS, PREGERSON and BEEZER, Circuit Judges. BEEZER, Circuit Judge: State Farm Mutual Automobile Insurance Company (“State Farm”) brought this action for declaratory relief against Sheldon B. Fernandez and Marlene J. Mira, who are the beneficiaries of an automobile insurance policy issued by State Farm. The district court granted a summary judgment in favor of State Farm, holding that the policy did not cover certain injuries to Fernandez and that Fernandez was not entitled to arbitration on the issue of coverage. We affirm. I BACKGROUND At approximately 2 a.m. on June 13, 1981, Fernandez was leaving the Kekaha Naval Base in his pickup truck. Another vehicle, which was driven by Mark White, approached Fernandez’s truck from the opposite direction. Because White was using his high beams, Fernandez shifted from low beams to high beams and back again. White responded by shifting from high beams to low beams and back again. This process was repeated several times. When White’s vehicle passed Fernandez’s truck, White shouted at Fernandez. Fernandez turned his truck around and pursued White. After Fernandez stopped next to White, both drivers left their vehicles. In the ensuing confrontation, White stabbed Fernandez in the stomach. Fernandez and Mira are the insured parties under an automobile insurance policy issued by State Farm. On October 9, 1981, Fernandez filed a claim for uninsured motorist benefits under the policy. Fernandez later demanded’ arbitration. State Farm denied the claim and refused to submit to arbitration. On April 27, 1983, State Farm brought this action for declaratory relief. On June 1, 1983, Fernandez and Mira filed a counterclaim for declaratory relief and money damages. On March 21, 1984, the district court granted a summary judgment in favor of State Farm, from which Fernandez appeals. 582 F.Supp. 1283 (D.Hawaii 1984). Mira did not file a notice of appeal and is therefore no longer a party to this action. II STANDARD OF REVIEW We review the granting of a summary judgment de novo. Haluapo v. Aka shi Kaiun, K.K., 748 F.2d 1363, 1364 (9th Cir.1984). The interpretation of a contract presents a mixed question of law and fact. Marchese v. Shearson Hayden Stone, Inc., 734 F.2d 414, 417 (9th Cir.1984). The existence of an ambiguity must be determined as a matter of law. United States v. Contra Costa County Water District, 678 F.2d 90, 91 (9th Cir.1982). If an ambiguity exists, a question of fact is presented. See Marchese, 734 F.2d at 417. Under Hawaii law, ambiguities in insurance contracts are construed liberally in favor of the insured party. Sturla, Inc. v. Fireman’s Fund Insurance Co., 684 P.2d 960, 964 (Hawaii 1984). Ill ARBITRABILITY The policy at issue in this case contains two relevant clauses. The uninsured motorist coverage clause provides, in pertinent part: [F]or the purposes of this coverage, determination as to whether the insured or [his] representative is legally entitled to recover ... damages [from the uninsured motorist], and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. (emphasis omitted). A separate clause provides: If any person making claim under [the uninsured motorist coverage] and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle because of bodily injury to the insured, then each party shall, upon written demand of either, [submit to arbitration]____ The arbitrators shall then hear and determine the question or questions so in dispute____ (emphasis omitted). State Farm does not dispute Fernandez’s right to recover damages from White or the amount of such damages. Instead, State Farm based its refusal to compensate Fernandez on the ground that the policy does not cover Fernandez’s injury. Fernandez claims that the insurance policy gives him the right to demand arbitration of the coverage issues. We disagree. The policy clearly and unambiguously limits the scope of arbitration to determining (1) the amount of damages, and (2) whether the insured party has the right to recover from the uninsured motorist. See, e.g., Allstate Insurance Co. v. Cook, 21 Ariz.App. 313, 519 P.2d 66, 68 (1974). Fernandez cites numerous cases in which coverage issues have been arbitrated. See Annot., 29 A.L.R.3d 328 (1970). Some of those eases involved situations in which coverage issues were intertwined with issues relating to the right of the insured party to recover from the uninsured motorist. E.g., Employers’ Fire Insurance Co. v. Garney, 348 Mass. 627, 205 N.E.2d 8, 12 (1965). Other cases in that group turned on vaguer arbitration clauses. E.g., Fawver v. Allstate Insurance Co., 267 Or. 292, 516 P.2d 743, 745 (1973). In some states, the right to arbitration on coverage issues is mandated by statute. See, e.g., Orpustan v. State Farm Mutual Automobile Insurance Co., 7 Cal.3d 988, 991-92, 500 P.2d 1119, 1121, 103 Cal.Rptr. 919, 921 (1972). Those factors are absent in this case. Instead, we are presented with a simple question of contract interpretation. We hold that the coverage issue presented in this case is not arbitrable under the terms of the policy. IV COVERAGE The policy obligates State Farm “[t]o pay all sums which the insured ... shall be legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle.” Fernandez argues that he is entitled to recover under that provision. The issue before us is whether Fernandez’s injury arose out of a use of the uninsured vehicle. Initially, Fernandez argues that the uninsured motorist was “alighting” from the vehicle when he stabbed Fernandez. Even if alighting from a vehicle is a “use” of the vehicle, Fernandez’s injuries did not arise out of that use. The term “arising out of” requires at least a “minimal casual connection” between the use of the vehicle and the injury. National American Insurance Co. v. Insurance Co. of North America, 74 Cal.App.3d 565, 571, 140 Cal.Rptr. 828, 831 (1977). The “alighting” of the uninsured motorist from his vehicle and Fernandez’s injury are connected only in a chronological sense. Fernandez also argues that his injuries arose out of the use of the uninsured vehicle’s headlights. We disagree. The eases have uniformly held that an intervening intentional act breaks the causal connection between the use of an uninsured vehicle and an injury. See Annot., 15 A.L. R.4th 10, 42-48, 81-86 (1982). Fernandez cites several cases for the proposition that intentional acts involving an uninsured vehicle arise out of the use of the vehicle. Those cases are distinguishable because they involve either use of the uninsured vehicle in inflicting the injury or tortious acts committed by drivers against passengers. See, e.g., Fidelity & Casualty Co. v. Lott, 273 F.2d 500, 502 (5th Cir.1960) (applying Texas law); American Casualty Co. v. Southern Stages, Inc., 70 Ga.App. 22, 27 S.E.2d 227 (1943). Moreover, Lott and Southern Stages involved negligent infliction of harm, not intentional torts. In this case, the intervening tortious act by White broke the chain of causation between the use of the headlights and the stabbing wound. In sum, we hold that the use of the uninsured vehicle was not minimally causally connected to Fernandez’s injuries. V CONCLUSION The judgment of the district court is AFFIRMED. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
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. ROWOLDT v. PERFETTO, ACTING OFFICER IN CHARGE, IMMIGRATION AND NATURALIZATION SERVICE. No. 5. Argued November 13-14, 1956. — Restored to the calendar for reargument June 24, 1957. — Reargued October 14, 1957. Decided December 9, 1957. David Rein argued the cause on the original argument, and with Joseph Forer on the reargument, for petitioner. With them on the brief on the original argument was Ann Fagan Ginger, Carl H. Imlay argued the cause on the original argument, and Oscar H. Davis on the reargument, for respondent. With Mr. Imlay on the briefs were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg. Mr. Davis was also on the brief on the reargument. Mr. Justice Frankfurter delivered the opinion of the Court. Petitioner is an alien who has been ordered deported by virtue of § 22 of the Internal Security Act of 1950, 64 Stat. 987, 1006, for past membership in the Communist Party. He attacks the judgment below on the ground — the only claim we need to consider — that he was not a “member” of the Communist Party within the scope of that section. Petitioner is an alien who entered the United States in 1914 and, except for a short interval in Canada, has resided here continuously. The finding of “membership” by the hearing officer rested on petitioner’s own testimony. He stated that he joined the Communist Party in “the spring or summer of 1935,” paid dues, attended meetings, and remained a member “until I got arrested [in deportation proceedings] and that was at the end of 1935. When I was arrested, I finished the Communist Party membership . . . At a later point in his testimony, petitioner stated that he was probably a member for approximately one year. He then explained his reasons for joining the Communist Party: “The purpose was probably this — it seemed to me that it came hand in hand — the Communist Party and the fight for bread. It seemed to me like this— let’s put it this way — that the Communist Party and the Workers’ Alliance had one aim — to get something to eat for the people. I didn’t know it was against the law for aliens to join the Communist Party and the Workers’ Alliance. . . .” In response to a question whether his joining the Communist Party was “motivated by dissatisfaction in living under a democracy,” the following colloquy took place: “A. No, not by that. Just a matter of having no jobs at that time. Everybody around me had the idea that we had to fight for something to eat and clothes and shelter. We were not thinking then— anyways the fellows around me, of overthrowing anything. We wanted something to eat and something to crawl into. “Q. You say 'fight for something to eat and crawl into.’ What do you mean by that term? “A. We had to go and ask those who had it — that was the courthouse at that time. We petitioned city, state and national government. We did and we succeeded. We finally got unemployment laws and a certain budget. Even at the few communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in those days.” The other activity bearing on petitioner’s membership in the Communist Party was discussed in the following colloquy: “Q. Were you an active worker in the Communist Party? “A. The only active work I did was running the bookstore for a while. “Q. What sort of bookstore was it? “A. Oh, all kinds of literature — all kinds of writers in the whole world — Strachey, Marx, Lenin’s writing and others. Socialism and all that stuff. “Q. Did you own the bookstore? “A. No. I didn’t get a pennyjthere. “Q. What was the arrangement there? “A. I was kind of a salesman in there, but the Communist Party ran it. “Q. You secured this employment through your membership in the Communist Party? “A. Yes. “Q. Was this store an official outlet for communist literature? “A. Yes.” Petitioner testified that he never advocated change of government by force or violence and he also gave his unilluminating understanding of, and beliefs about, the principles of communism. His account of the circumstances and motives that led him to join the Communist Party stood unchallenged and was evidently accepted at face value. This testimony was all given during an examination of petitioner by the Immigration and Naturalization Service in 1947. At the hearing below, in 1951, petitioner refused to answer whether he had ever been a member of the Communist Party on the ground that the answers might incriminate him. The hearing officer found, from the evidence in the record, that petitioner “was a member of the Communist Party of the United States in 1935.” On appeal, to both the Assistant Commissioner, Adjudications Division of the Immigration and Naturalization Service, and subsequently the Board of Immigration Appeals, this finding was held supported by the record. Petitioner then sought a writ of habeas corpus from the District Court for the District of Minnesota. Both the District Court and, on appeal, the Court of Appeals for the Eighth Circuit held that the evidence produced at the hearing was sufficient to sustain the finding that petitioner was a “member” of the Communist Party. 228 F. 2d 109. As the case involves an application of Galvan v. Press, 347 U S. 522, we granted certiorari. 350 U. S. 993. The authority for the order deporting petitioner derives from the Internal Security Act of 1950, as amended by the Act of March 28, 1951, 65 Stat. 28. As indicated, its evidentiary support rests entirely on petitioner’s testimony before an immigration inspector in 1947. The transcript of that hearing was the foundation of the administrative proceedings that resulted in the order now under review. The adequacy of that testimony to sustain the order must be judged by the Internal Security Act of 1950, which was amended by § 1 of the Act of March 28, 1951, 65 Stat. 28, set forth in the margin. As pointed out in Galvan v. Press, supra, at 527, the legislative history of this amendatory statute shows that the three specified qualifications are not to be applied as narrow exceptions but are to be considered as illustrative of the spirit in which the rigorous provisions regarding deportability of § 22 (2) are to be construed. There must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was “joining an organization known as the Communist Party which operates as a distinct and active political organization . . . .” 347 U. S., at 528. Bearing in mind the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years, cf. Ng Fung Ho v. White, 259 U. S. 276, 284, we cannot say that the unchallenged account given by petitioner of his relations to the Communist Party establishes the kind of meaningful association required by the alleviating Amendment of 1951 as expounded by its sponsor, Senator McCarran, and his legislative collaborator, Senator Ferguson. (See 97 Cong. Rec. 2368 and 2387.) All that the Immigration authorities went on is what the petitioner himself said, for his truthfulness was not called into question. From his own testimony in 1947, which is all there is, the dominating impulse to his “affiliation” with the Communist Party may well have been wholly devoid of any “political” implications. To be sure, he was a “salesman” in a Communist book store, but he “didn’t get a penny there.” Presumably he had to live on something and further inquiry might have elicited that he was getting the necessities of life for his work in the book store. Nor is there a hint in the record that this was not a bona fide book shop. Accordingly, we are of the opinion that the record before us is all too insubstantial to support the order of deportation. The differences on the facts between Gal-van v. Press, supra, and this case are too obvious to be detailed. Judgment reversed. That section amended the Act of October 16, 1918, 40 Stat. 1012, as amended, to provide: “[See. 1] That any alien who is a member of any one of the following classes shall be excluded from admission into the United States: “(2) Aliens who, at any time, shall be or shall have been members of any of the following classes: “(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States .... “Sec. 4. (a) Any alien who was at the time of entering the United States, or has been at any time thereafter, ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.” The substance of the relevant portion of this provision was incorporated in the Immigration and Nationality Act of 1952, 66 Stat. 163, 205, 8 U. S. C. § 1251 (a) (6) (C). “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Attorney General is hereby authorized and directed to provide by regulations that the terms ‘members of’ and ‘affiliated with’ where used in the Act of October 16, 1918, as amended, shall include only membership or affiliation which is or was voluntary, and shall not include membership or affiliation which is or was solely (a) when under sixteen years of age, (b) by operation of law, or (c) for purposes of obtaining employment, food rations, or other essentials of living, and where necessary for such purposes.” See 16 Fed. Reg. 2907. These three exclusions from the substantive provision were, so far as deportations are concerned, repealed by the Immigration and Nationality Act of 1952, 66 Stat. 163, 280; however, as the text of this opinion makes clear, we are not deciding this case on the basis of (c), supra. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond2_3_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. Roberto DIAZ, Plaintiff, Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants, Appellees. No. 87-1879. United States Court of Appeals, First Circuit. Submitted June 10, 1988. Decided July 27, 1988. Harry Anduze Montano, Santurce, P.R., on brief, for appellant. Lori Joan Dym, Office of Labor Law, Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., Isabel Munzo, Asst. U.S. Atty., Hato Rey, P.R., and Jesse L. Butler, Asst. Gen. Counsel, Washington, D.C., on brief for appellees. Before BOWNES and BREYER, Circuit Judges, and CAFFREY, Senior District Judge. Of the District of Massachusetts, sitting by designation. CAFFREY, Senior District Judge. The plaintiff-appellant, Roberto Diaz, brought this suit in Federal District Court challenging his removal from his position as Postmaster of the United States Postal Service on a number of grounds. The District Court found that the decision of the Postal Service was supported by substantial evidence and granted summary judgment for the appellee. The plaintiff now appeals this decision. For the reasons set out below, we now affirm the • District Court's decision. I. Background At the time of the events involved in this case, the plaintiff was employed by the United States Postal Service as Postmaster of the Toa Baja Post Office in Puerto Rico. In March, 1984, the Postal Inspection Service began investigating the suspected theft of mail from the Toa Baja office by preparing a test parcel containing a wireless telephone. A radio transmitter hidden in the parcel enabled the inspectors to monitor the location of the parcel. The inspectors then attached to the parcel a meter strip and an address label made out to a person who had previously moved out of the Toa Baja district. The package was then sent to Toa Baja. Shortly thereafter, the test parcel arrived at the Toa Baja station. The parcel was brought to the attention of the appellant because the addressee had moved. After the post office had closed the next day, postal inspectors observed the appellant leaving the post office. Because of the hidden transmitter, the inspectors were able to determine that the test parcel was in the appellant’s car. Accordingly, the inspectors followed the appellant to his home. At the appellant’s home, the postal inspectors confronted him about the test parcel. The appellant denied having any parcel even when he was told about the radio transmitter. After refusing to allow inspectors to search his car, the appellant was placed under arrest. The inspectors obtained a search warrant and searched the appellant’s car, in which they found the test parcel. The appellant was charged with obstruction of correspondence and theft of mail in violation of 18 U.S.C. §§ 1702, 1709. He was eventually acquitted by a jury. Unfortunately for the appellant, this did not end the matter. On March 27, 1984, the appellant received a Notice of Proposed Indefinite Suspension from the District Director, Carlos Falu. As grounds for the proposed suspension, Mr. Falu cited the criminal charges noted above, plus violations of the employee’s code of conduct. On April 7, 1984, the appellant was placed on non-duty, non-pay status. By letter dated May 4, 1984, Caribbean Postal District Manager suspended the appellant as of May 11, 1984 until the criminal charges had been resolved. Following his acquittal on the criminal charges, the appellant was returned to pay status on June 11,1984, but was told not to report to work. Shortly thereafter, the appellant received a Notice of Proposed Adverse Action. This notice of pending removal charged the appellant with removal of mail from the mail stream and delay of mail, in violation of postal regulations, and with engaging in conduct prejudicial to the postal system, in violation of the Employee/Labor Relations Manual. Despite the appellant’s denial of these violations, the appellant was discharged from the Postal Service on October 9, 1984. The appellant exercised his right of appeal, and a hearing was held before a Postal Service hearing officer. After hearing testimony the officer prepared a summary of facts. After reviewing these findings, the Postal Service Regional Director of Employee and Labor Relations determined that the bases for appellant’s removal were supported by a preponderance of the evidence. Exercising his Step II appeal rights, the appellant appealed this Step I decision to the Regional Postmaster General, John Mulligan. On June 11, 1985, the Assistant Postmaster General affirmed the Step I decision. The plaintiff then filed this action in Federal District Court, challenging his removal. In the district court, the appellant argued that the decision to remove him was arbitrary and capricious, and that the Code of Ethical Conduct, violation of which the appellant was charged, was unconstitutional. The District Court reviewed the administrative record and determined that the agency’s decision was supported by substantial evidence and was not arbitrary and capricious, 668 F.Supp. 88 (1987). Since the court found that the removal of mail charge and the delay of mail charge were proper, the court declined to reach the issue of the Ethics Code’s constitutionality. II. Analysis The appellant makes a number of arguments concerning the propriety of the District Court’s decision. The appellant is faced at the outset, however, with an insurmountable hurdle. The appellee argues that under the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 et seq., (the CSRA), the Federal Courts do not have jurisdiction to review the merits of this personnel decision. We agree. We begin by noting that the appellant fails to state the basis for his cause of action challenging the merits of the Postal Service’s decision. The only possible basis of which we are aware for the plaintiff’s cause of action are the laws governing personnel decisions of the Postal Service. We therefore turn to those statutes. In order to understand the procedural rights of the appellant, we must first examine the somewhat convoluted statutory scheme governing personnel decisions of the Postal Service. As- an initial matter, Congress provided, with certain exceptions, that no federal law dealing with employees shall apply to the exercise of the powers of the Postal Service. 39 U.S.C. § 410(a) (1980). Thus, unless specifically provided, the Postal Service is not bound by the federal employment laws governing other government agencies. The statute goes on, however, to provide a number of exceptions. The applicable exception for our purposes is that Chapter 75 of Title 5 shall apply to employees of the Postal Service. 39 U.S.C. § 1005(a) (1980). Chapter 75, as codified at 5 U.S.C. § 7501 et. seq. was enacted as part of Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 et seq. (codified, as amended, in various sections of 5 U.S.C. (1982 ed. and Supp. IV)). The CSRA completely revamped the traditional civil service system, and created an elaborate system for reviewing personnel actions taken by agencies. Lindahl v. Office of Personnel Management, 470 U.S. 768, 773, 105 S.Ct. 1620, 1624, 84 L.Ed.2d 674 (1985). As part of this system, Chapter 75 sets out procedural safeguards for “employees” suffering certain adverse personnel actions. Removal from office is an adverse action covered by this subchapter. 5 U.S. C. § 7512 (1980). When an agency removes an employee from office, the employee is entitled to appeal his removal to the Merit Systems Protection Board (the MSPB). 5 U.S.C. § 7513(d). Any employee adversely affected by a decision of the MSPB may then obtain judicial review of that decision in the Court of Appeals for the Federal Circuit. 5 U.S.C. § 7703. A court shall set aside the agency decision if it is found to be arbitrary or capricious, an abuse of discretion, obtained without procedures required by law, or unsupported by substantial evidence. 5 U.S.C. § 7703(c). Thus, an employee who is removed from office may appeal his removal to the MSPB and subsequently to the Court of Appeals for the Federal Circuit. These rights of appeal, however, are not provided to everyone employed by a government agency. Only “employees” are protected by the safeguards of Chapter 75. For the purposes of this chapter, an employee is defined as: (a) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and (b) a preference eligible in an Executive agency in the excepted service, and a preference eligible in the United States Postal Service or the Postal Rate Commission, who has completed 1 year of current continuous service in the same or similar positions. 5 U.S.C. § 7511(a). Since the appellant is not a preference eligible employee in the Postal Service, he does not have the right under this chapter to appeal his removal to the MSPB and, subsequently, to federal court. The issue, then, is whether a non-preference eligible employee of the Postal Service may seek judicial review of the merits of an adverse personnel action. We hold that he may not. The United States Supreme Court recently dealt with a very similar question in Fausto v. United States, — U.S. -, 108 S.Ct. 668, 98 L.Ed.2d 830 reh’g denied, — U.S. -, 108 S.Ct. 1250, 99 L.Ed.2d 448 (1988). In that case, a nonpreference eligible member of the Fish and Wildlife Service, an excepted service, was suspended without pay for thirty days. After his suspension was upheld by the Department of the Interior, the employee challenged his suspension in the Claims Court in an action for back pay under the Back Pay Act, 5 U.S.C. § 5596, and the Tucker Act, 28 U.S. C. § 1491. Id. 108 S.Ct. at 671. Despite the fact that the employee had no right of appeal to the MSPB under the CSRA, the Claims Court held that the CSRA did not preclude the employee from seeking review under the Tucker Act. Id. The Supreme Court reversed, holding that the CSRA precluded judicial review of the agency’s decision. The Court examined the statutory scheme of the CSRA and concluded that the exclusion of nonpreference members of the excepted service from the definitional section of Chapter 75 was a conscious decision by Congress to deny the excluded employees judicial review of personnel actions covered by that chapter. Id. at 673. The holding of Fausto is applicable to this case. The CSRA expressly grants judicial review of removal actions to preference eligible members of the Postal Service. This implies that nonpreferenee employees such as the appellant may not obtain judicial review of actions covered by Chapter 75. In enacting the CSRA, Congress intended to create a system that would provide more unified and consistent decision making. Id. at 674. Allowing employees such as the appellant to bypass Chapter 75 and seek judicial review of personnel actions would thwart this goal. Moreover, if excluded classes of employees could get a district court in the first instance to review the merits of the agency’s decision, they would be in a better position than preference eligible employees, who must follow the procedural route laid out in Chapter 75. Id. at 674. It is clear, however, that Congress intended to provide preference eligible employees with greater safeguards than excluded classes of employees, such as probationary employees. Id. Therefore, the CSRA precludes the district court from reviewing the merits of an adverse personnel action taken against one who is not covered by Chapter 75 of Title 5. Accordingly, the district court did not err in dismissing the appellant’s non-constitutional claims. See also Witzkoske v. United States Postal Service, 848 F.2d 70 (5th Cir.1988) (holding that the district court lacked jurisdiction to review the Postal Service’s decision to discharge the plaintiff); Harrison v. Bowen, 815 F.2d 1505 (D.C.Cir.1987) (holding that the CSRA forecloses judicial review of nonpreference eligible employee’s removal). The appellant makes a final argument that the district court erred in not addressing the constitutionality of sections 661.3(f) and 661.53 of the Employee’s Code of Ethical Conduct. Since the charge of removing mail from the mail stream alone was sufficient grounds on which to discharge the appellant, the court declined to address the constitutionality of sections 661.3(f) and 661.53. We agree with the appellant that the district court should have addressed this issue. The court is correct in noting that when possible, a case should be decided without reference to federal constitutional questions. Catrone v. Massachusetts State Racing Commission, 535 F.2d 669, 671 (1st Cir.1976). This rule usually applies when a court is faced with a regulation or statute which, if interpreted or applied one way, raises constitutional questions, but if interpreted another way, avoids those constitutional questions. See, e.g., Jean v. Nelson, 472 U.S. 846, 105-S.Ct. 2992, 86 L.Ed.2d 664 (1985) (court below should have determined whether agency officials violated their own regulations before addressing issue of whether the official’s actions were unconstitutional); Catrone, 535 F.2d 669 (holding that the district court should have abstained from deciding whether the defendants violated the plaintiff’s constitutional rights until the state court determined whether the defendants acted contrary to state law). In this case, however, we have a different situation. The appellant was discharged for violating three sections of the Employee’s Code of Conduct. The appellant claimed that two of the sections were unconstitutional. Even if the third section was sufficient to discharge the appellant, the two allegedly unconstitutional sections still played a part in the decision to discharge the appellant. If the challenged sections of the Code of Conduct were unconstitutional, then the Postal Service could not rely on those sections in taking action against the appellant. In such circumstances, the court might have been required to remand the case to the Postal Service to determine whether discharge was the proper course in light of a single violation of the Code of Conduct. See Salt River Project Agricultural Improvement and Power District v. United States, 762 F.2d 1053, 1061 n. 8 (D.C.Cir.1985) (noting that when an agency relies upon a number of findings, one or more of which are erroneous, the court must reverse only when there is a significant chance, but for the errors, the agency might have reached a different result); Siang Ken Wang v. I.N.S., 413 F.2d 286 (9th Cir.1969) (reversing and remanding a deportation order where the I.N.S. based its decision on four factors, one of which was improperly considered); American Public Transit Ass’n v. Lewis, 655 F.2d 1272, 1279 (D.C.Cir.1981) (remanding regulations to the agency despite the existence of valid grounds for promulgation where the agency relied on improper grounds rather than on the proper grounds). Since the court would have been required to remand the case to the Postal Service if §§ 661.3(f) and 661.53 were found to be unconstitutional, the court should have addressed the constitutionality of those sections. Although the district court erred in not addressing the question of constitutionality, this error was of little consequence since the appellant’s constitutional arguments are clearly without merit.. The appellant’s chief argument below was that the challenged regulations impose upon the appellant the “unreasonable burden” of controlling what is published by the press. The appellant errs in several ways. To begin with, the appellant misconstrues the regulation. Section 661.3(f) requires that postal employees not engage in activities which might result in, or create the appearance of, affecting adversely the confidence of ’the public in the integrity of the Postal Service. Plainly, the regulation is not concerned with what the media in fact publishes, but rather with what would reflect badly upon the Service if it was published. As such, what the media actually publishes is irrelevant to whether an employee violates this regulation. Thus, the regulation does not impose upon appellant the unreasonable burden of controlling the press. Ignoring the appellant’s mischaracterization of the regulation, § 661.3(f) is clearly constitutional.. In challenging the constitutionality of a regulation under the Due Process Clause, the appellant must show that there is no rational relation between the regulation and a legitimate governmental objective. Boyle v. Turnage, 798 F.2d 549, 552 (1st Cir.1986). It cannot be seriously questioned that the Postal Service, or any governmental agency for that matter, has a legitimate interest in maintaining public trust in the agency and its employees. Maintaining this trust is especially important for the Postal Service. In recent times, the Postal Service has been faced with increased competition from private organizations. If the Service is to compete effectively with these private groups, it is essential that it maintain an image of trustworthiness and integrity. Thus, public trust in the Service’s employees is necessary for efficient functioning of the Service. Munnelly v. United States Postal Service, 805 F.2d 295, 301 (8th Cir.1986). Since public trust is built largely on appearances, it is reasonable for the Service to prohibit actions which might reflect negatively on the Service. We cannot say, therefore, that § 661.3(f) is unrelated to' a legitimate governmental interest. In light of our holding that § 661.3(f) does not on its face violate the Due Process Clause, the district court’s summary judgment denying declaratory and injunctive relief is affirmed. Affirmed. . We note that the issue of subject-matter jurisdiction, though not raised below, is properly raised on appeal. Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1162 n. 6 (1st Cir.1987). . In 1987, Congress amended the Postal Service Reorganization Act to extend the protections of Chapter 75 to management or supervisory employees of the Postal Service, and to employees of the Postal Service who are engaged in personnel work in other than a purely nonconfidential clerical capacity. Pub.L. No. 100-90, 101 Stat. 673, codified at 39 U.S.C. § 1005(a)(4)(A)(ii) (1988 Supp.). This amendment, however, does not apply to actions begun prior to September 16, 1987. Pub.L. 100-90 § 1(b)(2). Therefore, the appellant may not claim the benefit of this amendment. . Preference eligible employees are veterans and certain relatives of veterans. 5 U.S.C. § 2108(3). . Section 661.3(f) provides, "Employees must avoid any action, whether or not specifically prohibited by this Code, which might result in or create the appearance of affecting adversely the confidence of the public in the integrity of the Postal Service.” 39 C.F.R. § 447.21(a)(6). Section 661.53 states, No employee will engage in criminal, dishonest, notoriously disgraceful or immoral conduct, or other conduct prejudicial to the Postal Service. Conviction of a violation Of a criminal statute may be grounds for disciplinary action by the Postal Service, in addition to any other penalty by or pursuant to statute. 39 C.F.R. § 447.25(c). . The appellant does not specify with which substantive constitutional right the regulations interfere. We assume he is arguing that his discharge based on these regulations deprived him of his property interest in continued government employment without due process of law. We also note that the appellant’s argument applies only to § 661.3(f). The appellant did not present any arguments relating to the constitutionality of § 661.53. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
sc_casesource	024	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. CHRISTENSEN et al. v. HARRIS COUNTY et al. No. 98-1167. Argued February 23, 2000 Decided May 1, 2000 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connok, Kennedy, and Souter, JJ., joined, and in which Soalza, J., joined except as to Part III. Souter, J., filed a concurring opinion, post, p. 589. Scaiza, J., filed an opinion concurring in part and concurring in the judgment, post, p. 589. Stevens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 592. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 596. Michael T. Leibig argued the cause for petitioners. With him on the briefs were Richard H. Cobb and Murray E. Malakoff. ■ Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Waxman, Deputy Solicitor General Kneedler, Jonathan E. Nuechterlein, Allen H. Feldman, and Edward D. Sieger. Michael P Fleming argued the cause for respondents. With him on the brief were Michael A. Stafford, Bruce S, Powers, and William John Bux Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Deborah Greenfield, James B. Coppess, and Laurence Gold; for the International Association of Fire Fighters by Thomas A. Woodley; and for the National Association of Police Organizations by Stephen R. McSpadden. Jeffrey A Hollingsworth filed a brief for Spokane Valley Fire Protection District No. 1 as amicus curiae urging affirmance. Justice Thomas delivered the opinion of the Court. Under the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. (1994 ed. and Supp. Ill), States and their political subdivisions may compensate their employees for overtime by granting them compensatory time or “comp time,” which entitles them to take time off work with full pay. §207(o). If the employees do not use their accumulated compensatory time, the employer is obligated to pay cash compensation under certain circumstances. §§ 207(o)(3)-(4). Fearing the fiscal consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued compensatory time. Employees of the Harris County Sheriff’s Department sued, claiming that the FLSA prohibits such a policy. The Court of Appeals rejected their claim. Finding that nothing in the FLSA or its implementing regulations prohibits an employer from compelling the use of compensatory time, we affirm. I A The FLSA generally provides that hourly employees who work in excess of 40 hours per week must be compensated for the excess hours at a rate not less than 114 times their regular hourly wage. § 207(a)(1). Although this requirement did not initially apply to public-sector employers, Congress amended the FLSA to subject States and their political subdivisions to its constraints, at first on a limited basis, see Fair Labor Standards Amendments of 1966, Pub. L. 89-601, § 102(b), 80 Stat. 831 (extending the FLSA to certain categories of state and local employees), and then more broadly, see Fair Labor Standards Amendments of 1974, Pub. L. 93-259, §§ 6(a)(l)-(2), 88 Stat. 58-59 (extending the FLSA to all state and local employees, save elected officials and their staffs). States and their political subdivisions, however, did not feel the foil force of this latter extension until our decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), which overruled our holding in National League of Cities v. Usery, 426 U. S. 833 (1976), that the FLSA could not constitutionally restrain traditional governmental functions. In the months following Garcia, Congress acted to mitigate the effects of applying the FLSA to States and their political subdivisions, passing the Fair Labor Standards Amendments of 1985, Pub. L. 99-150, 99 Stat. 787. See generally Moreau v. Klevenhagen, 508 U. S. 22, 26 (1993). Those amendments permit States and their political subdivisions to compensate employees for overtime by granting them compensatory time at a rate of 114 hours for every hour worked. See 29 U. S. C. § 207(o)(l). To provide this form of compensation, the employer must arrive at an agreement or understanding with employees that compensatory time will be granted instead of cash compensation. §207(o)(2); 29 CFR §553.23 (1999). The FLSA expressly regulates some aspects of accrual and preservation of compensatory time. For example, the FLSA provides that an employer must honor an employee’s request to use compensatory time within a “reasonable period” of time following the request, so long as the use of the compensatory time would not “unduly disrupt” the employer’s operations. §2Q7(o)(5); 29 CFR §553.25 (1999). The FLSA also caps the number of compensatory time hours that an employee may accrue. After an employee reaches that maximum, the employer must pay cash compensation for additional overtime hours worked. §207(o)(3)(A). In addition, the FLSA permits the employer at any time to cancel or “cash out” accrued compensatory time hours by paying the employee cash compensation for unused compensatory time. § 207(o)(3)(B); 29 CFR § 553.26(a) (1999). And the FLSA entitles the employee to cash payment for any accrued compensatory time remaining upon the termination of employment. § 207(o)(4). B Petitioners are 127 deputy sheriffs employed by respondents Harris County, Texas, and its sheriff, Tommy B. Thomas (collectively, Harris County). It is undisputed that each of the petitioners individually agreed to accept compensatory time, in lieu of cash, as compensation for overtime. As petitioners accumulated compensatory time, Harris County became concerned that it lacked the resources to pay monetary compensation to employees who worked overtime after reaching the statutory cap on compensatory time accrual and to employees who left their jobs with sizable reserves of accrued time. As a result, the county began looking for a way to reduce accumulated compensatory time. It wrote to the United States Department of Labor’s Wage and Hour Division, asking “whether the Sheriff may schedule non-exempt employees to use or take compensatory time.” Brief for Petitioners 18-19. The Acting Administrator of the Division replied: “[I]t is our position that a public employer may schedule its nonexempt employees to use their accrued FLSA compensatory time as directed if the prior agreement specifically provides such a provision .... “Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time.” Opinion Letter from Dept, of Labor, Wage and Hour Div. (Sept. 14, 1992), 1992 WL 845100 (Opinion Letter). After receiving the letter, Harris County implemented a policy under which the employees’ supervisor sets a .maximum number of compensatory hours that may be accumulated. When an employee’s stock of hours approaches that maximum, the employee is advised of the maximum and is asked to take steps to reduce accumulated compensatory time. If the employee does not do so voluntarily, a supervisor may order the employee to use his compensatory time at specified times. Petitioners sued, claiming that the county’s policy violates the FLSA because §207(o)(5) — which requires that an employer reasonably accommodate employee requests to use compensatory time — provides the exclusive means of utilizing accrued time in the absence of an agreement or understanding permitting some other method. The District Court agreed, granting summary judgment for petitioners and entering a declaratory judgment that the county’s policy violated the FLSA. Moreau v. Harris County, 945 F. Supp. 1067 (SD Tex. 1996). The Court of Appeals for the Fifth Circuit reversed, holding that the FLSA did not speak to the issue and thus did not prohibit the county from implementing its compensatory time policy. Moreau v. Harris County, 158 F. 3d 241 (1998). Judge Dennis concurred in part and dissented in part, concluding that the employer could not compel the employee to use compensatory time unless the employee agreed to such an arrangement in advance. Id., at 247-251. We granted certiorari because the Courts of Appeals are divided on the issue. 528 U. S. 926 (1999). II Both parties, and the United States as amicus curiae, concede that nothing in the FLSA expressly prohibits a State or subdivision thereof from compelling employees to utilize accrued compensatory time. Petitioners and the United States, however, contend that the FLSA implicitly prohibits such a practice in the absence of an agreement or understanding authorizing compelled use. Title 29 U. S. C. § 207(o)(5) provides: “An employee ... “(A) who has accrued compensatory time off... , and “(B) who has requested the use of such compensatory time, “shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.” Petitioners and the United States rely upon the canon ex-pressio unius est exclusio alterius, contending that the express grant of control to employees to use compensatory time, subject to the limitation regarding undue disruptions of workplace operations, implies that all other methods of spending compensatory time are precluded. We find this reading unpersuasive. We accept the proposition that “[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.” Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270 (1872). But that canon does not resolve this case in petitioners’ favor. The “thing to be done” as defined by §207(o)(5) is not the expenditure of compensatory time, as petitioners would have it. Instead, § 207(o)(5) is more properly read as a minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it. As such, the proper expressio unius inference is that an employer may not, at least in the absence of an agreement, deny an employee’s request to use compensatory time for a reason other than that provided in § 207(o)(5). The canon’s application simply does not prohibit an employer from telling an employee to take the benefits of compensatory time by scheduling time off work with full pay. In other words, viewed in the context of the overall statutory scheme, §207(o)(5) is better read not as setting forth the exclusive method by which compensatory time can be used, but as setting up a safeguard to ensure that an employee will receive timely compensation for working overtime. Section 207(o)(5) guarantees that, at the very minimum, an employee will get to use his compensatory time (i. e., take time off work with full pay) unless doing so would disrupt the employer’s operations. And it is precisely this concern over ensuring that employees can timely “liquidate” compensatory time that the Secretary of Labor identified in her own regulations governing §207(o)(5): “Compensatory time cannot be used as a means to avoid statutory overtime compensation. An employee has the right to use compensatory time earned and must not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period of his or her making a request for use of such time.” 29 CFR § 553.25(b) (1999). This reading is confirmed by nearby provisions of the FLSA that reflect a similar concern for ensuring that the employee receive some timely benefit for overtime work. For example, §207(o)(3)(A) provides that workers may not accrue more than 240 or 480 hours of compensatory time, depending upon the nature of the job. See also § 207(o)(2)(B) (conditioning the employer’s ability to provide compensatory time upon the employee not accruing compensatory time in excess of the § 207(o)(3)(A) limits). Section 207(o)(3)(A) helps guarantee that employees only accrue amounts of compensatory time that they can reasonably use. After all, an employer does not need §207(o)(3)(A)’s protection; it is free at any time to reduce the number of hours accrued by exchanging them for cash payment, §2G7(o)(3)(B), or by halting the accrual of compensatory time by paying cash compensation for overtime work, 29 CFR § 553.26(a) (1999). Thus, § 207(o)(3)(A), like §207(o)(5), reflects a concern that employees receive some timely benefit in exchange for overtime work. Moreover, on petitioners’ view, the compensatory time exception enacted by Congress in the wake of Garcia would become a nullity when employees who refuse to use compensatory time reach the statutory máximums on accrual. Petitioners’ position would convert §207(o)(3)(A)’s shield into a sword, forcing employers to pay cash compensation instead of providing compensatory time to employees who work overtime. At bottom, we think the better reading of §207(o)(5) is that it imposes a restriction upon an employer’s efforts to -prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer’s efforts to require employees to use compensatory time. Because the statute is silent on this issue and because Harris County’s policy is entirely compatible with § 207(o)(5), petitioners cannot, as they are required to do by 29 U. S. C. § 216(b), prove that Harris County has violated §207. Our interpretation of §207(o)(5) — one that does not prohibit employers from forcing employees to use compensatory time — finds support in two other features of the FLSA. First, employers remain free under the FLSA to decrease the number of hours that employees work. An employer may tell the employee to take off an afternoon, a day, or even an entire week. Cf. Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 739 (1981) (“[T]he FLSA was designed ... to ensure that each employee covered by the Act. . . would be protected from the evil of overwork . . .” (internal quotation marks and emphasis omitted)). Second, the FLSA explicitly permits an employer to cash out accumulated compensatory time by paying the employee his regular hourly wage for each hour accrued. §207(o)(3)(B); 29 CFR § 553.27(a) (1999). Thus, under the FLSA an employer is free to require an employee to take time off work, and an employer is also free to use the money it would have paid in wages to cash out accrued compensatory time. The compelled use of compensatory time challenged in this case merely involves doing both of these steps at once. It would make little sense to interpret §207(o)(5) to make the combination of the two steps unlawful when each independently is lawful. III In an attempt to avoid the conclusion that the FLSA does not prohibit compelled use of compensatory time, petitioners and the United States contend that we should defer to the Department of Labor’s opinion letter, which takes the position that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice. Specifically, they argue that the agency opinion letter is entitled to deference under our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). In Chevron, we held that a court must give effect to an agency’s regulation containing a reasonable interpretation of an ambiguous statute. Id., at 842-844. Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law— do not warrant Chevron-style deference. See, e. g., Reno v. Koray, 515 U. S. 50, 61 (1995) (internal agency guideline, which is not “subject to the rigors of the Administrative Procedure] Act, including public notice and comment,” entitled only to “some deference” (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U. S. 244, 256-258 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 157 (1991) (interpretative rules and enforcement guidelines are “not entitled to the same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers”). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but only to the extent that those interpretations have the “power to persuade,” ibid. See Arabian American Oil Co., supra, at 256-258. As explained above, we find unpersuasive the agency’s interpretation of the statute at issue in this case. Of course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation. But in this case the Department of Labor’s regulation does not address the issue of compelled compensatory time. The regulation provides only that “[t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing out of compensatory time so long as these provisions are consistent with [§207(o)].” 29 CFR § 553.23(a)(2) (1999) (emphasis added). Nothing in the regulation even arguably requires that an employer’s compelled use policy must be included in an agreement. The text of the regulation itself indicates that its command is permissive, not mandatory. Seeking to overcome the regulation’s obvious meaning, the United States asserts that the agency’s opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U. S. 452 (1997). In Auer, we held that an agency’s interpretation of its own regulation is entitled to deference. Id., at 461. See also Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous — it is plainly permissive. To defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of compelled compensatory time, Auer deference is unwarranted. * * * As we have noted, no relevant statutory provision expressly or implicitly prohibits Harris County from pursuing its policy of forcing employees to utilize their compensatory time. In its opinion letter siding with the petitioners, the Department of Labor opined that "it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time.” Opinion Letter (emphasis added). But this view is exactly backwards. Unless the FLSA prohibits respondents from adopting its policy, petitioners cannot show that Harris County has violated the FLSA. And the FLSA contains no such prohibition. The judgment of the Court of Appeals is affirmed. It is so ordered. Such an agreement or understanding need not be formally reached and memorialized in writing, but instead can be arrived at informally, such as when an employee works overtime knowing that the employer rewards overtime with compensatory time. See 29 CFR § 553.23(c)(1) (1999). Compare, e. g., Collins v. Lobdell, 188 F. 3d 1124, 1129-1130 (CA9 1999) (upholding employer’s policy compelling compensatory time use), with Heaton v. Moore, 43 F. 3d 1176, 1180-1181 (CA8 1994) (striking down policy compelling compensatory time use), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995). We granted certiorari on the question “‘[w]hether a public agency governed by the compensatory time provisions of the Fair Labor Standards Act of 1938, 29 U. S. C. §207(o), may, absent a preexisting agreement, require its employees to use accrued compensatory time?’ ” 528 U. S. 926, 927 (1999). As such, we decide this case on the assumption that no agreement or understanding exists between the employer and employees on the issue of compelled use of compensatory time. Justice Stevens asserts that the parties never make this argument. See post, at 593, n. 1 (dissenting opinion). Although the United States and petitioners fail to make their arguments in Latin 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. 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sc_caseorigin	049	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. UNITED STATES v. HAVENS No. 79-305. Argued March 19, 1980 Decided May 27, 1980 White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, and in Part I of which Stewart and Stevens, JJ., joined, post, p. 629. Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General McCree and Assistant Attorney General Heymann. William C. Lee argued the cause and filed a brief for respondent. Mr. Justice White delivered the opinion of the Court. The petition for certiorari filed by the United States in this criminal case presented a single question: whether evidence suppressed as the fruit of an unlawful search .and seizure may nevertheless be used to impeach a defendant's false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the defendant's testimony on direct examination. We issued the writ, 444 U. S. 962 (1979). I Respondent was convicted of importing, conspiring to import, and intentionally possessing a controlled substance, cocaine. According to the evidence at his trial, Havens and John McLeroth, both attorneys from Ft. Wayne, Ind., boarded a flight from Lima, Peru, to Miami, Fla. In Miami, a customs officer searched McLeroth and found cocaine sewed into makeshift pockets in a T-shirt he was wearing under his outer clothing. McLeroth implicated respondent, who had previously cleared customs and who was then arrested. His luggage was seized and searched without a warrant. The officers found no drugs but seized a T-shirt from which pieces had been cut that matched the pieces that had been sewn to McLeroth’s T-shirt. The T-shirt and other evidence seized in the course of the search were suppressed on motion prior to trial. Both men were charged in a three-count indictment, but McLeroth pleaded guilty to one count and testified against Havens. Among other things, he asserted that Havens had supplied him with the altered T-shirt and had sewed the makeshift pockets shut. Havens took the stand in his own defense and denied involvement in smuggling cocaine. His direct testimony included the following: “Q. And you heard Mr. McLeroth testify earlier as to something to the effect that this material was taped or draped around his body and so on, you heard that testimony? “A. Yes, I did. “Q. Did you ever engage in that kind of activity with Mr. McLeroth and Augusto or Mr. McLeroth and anyone else on that fourth visit to Lima, Peru? “A. I did not.” App. 34. On cross-examination, Havens testified as follows: “Q. Now, on direct examination, sir, you testified that on the fourth trip you had absolutely nothing to do with the wrapping of any bandages or tee shirts or anything involving Mr. McLeroth; is that correct? “A. I don’t — I said I had nothing to do with any wrapping or bandages or anything, yes. I had nothing to do with anything with McLeroth in connection with this cocaine matter. “Q. And your testimony is that you had nothing to do with the sewing of the cotton swatches to make pockets on that tee shirt? “A. Absolutely not. “Q. Sir, when you came through Customs, the Miami International Airport, on October 2, 1977, did you have in your suitcase Size 38-40 medium tee shirts?” Id., at 35. An objection to the latter question was overruled and questioning continued: “Q. On that day, sir, did you have in your luggage a Size 38-40 medium man’s tee shirt with swatches of clothing missing from the tail of that tee shirt? “A. Not to my knowledge. “Q. Mr. Havens, I’m going to hand you what is Government’s Exhibit 9 for. identification and ask you if this tee shirt was in your luggage on October 2nd, 1975 [sic] ? “A. Not to my knowledge. No.” Id., at 46. Respondent Havens also denied having told a Government agent that the T-shirts found in his luggage belonged to McLeroth. On rebuttal, a Government agent testified that Exhibit 9 had been found in respondent’s suitcase and that Havens claimed the T-shirts found in his bag, including Exhibit 9, belonged to McLeroth. Over objection, the T-shirt was then admitted into evidence, the jury being instructed that the rebuttal evidence should be considered only for impeaching Havens’ credibility. The Court of Appeals reversed, relying on Agnello v. United States, 269 U. S. 20 (1925), and Walder v. United States, 347 U. S. 62 (1954). The court held that illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a defendant in the course of his direct examination. 592 F. 2d 848 (CA5 1979). We reverse. II In Agnello v. United States, supra, a defendant charged with conspiracy to sell a package, of cocaine testified on direct examination that he had possessed the packages involved but did not know what was in them. On cross-examination, he denied ever having seen narcotics and ever having seen a can of cocaine which was exhibited to him and which had been illegally seized from his apartment. The can of cocaine was permitted into evidence on rebuttal. Agnello was convicted and his conviction was affirmed by the Court of Appeals. This Court reversed, holding that the Fourth Amendment required exclusion of the evidence. The Court pointed out that “[i]n his direct examination, Agnello was not asked and did not testify concerning the can of cocaine” and “did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search.” 269 U. S., at 35. The Court also said, quoting from Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920), that the exclusionary rule not only commands that illegally seized evidence “shall not be used before the Court but that it shall not be used at all.” 269 U. S., at 35. The latter statement has been rejected in our later cases, however, and Agnello otherwise limited. In Walder v. United States, supra, the use of evidence obtained in an illegal search and inadmissible in the Government’s case in chief was admitted to impeach the direct testimony of the defendant. This Court approved, saying that it would pervert the rule of Weeks v. United States, 232 U. S. 383 (1914), to hold otherwise. Similarly, in Harris v. New York, 401 U. S. 222 (1971), and Oregon v. Hass, 420 U. S. 714 (1975), statements taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), and unusable by the prosecution as part of its own case, were held admissible to impeach statements made by the defendant in the course of his direct testimony. Harris also made clear that the permitted impeachment by otherwise inadmissible evidence is not limited to collateral matters. 401 U. S., at 225. These cases were understood by the Court of Appeals to hold that tainted evidence, inadmissible when offered as part of the Government’s main case, may not be used as rebuttal evidence to impeach a defendant’s credibility unless the evidence is offered to contradict a particular statement made by a defendant during his direct examination; a statement made for the first time on cross-examination may not be so impeached. This approach required the exclusion of the T-shirt taken from Havens’ luggage because, as the Court of Appeals read the record, Havens was asked nothing on his direct testimony about the incriminating T-shirt or about the contents of his luggage; the testimony about the T-shirt, which the Government desired to impeach first appeared on cross-examination, not on direct. It is true that Agnello involved the impeachment of testimony first brought out on cross-examination and that in Walder, Harris, and Hass, the testimony impeached was given by the defendant while testifying on direct examination. In our view, however, a flat rule permitting only statements on direct examination to be impeached misapprehends the underlying rationale of Walder, Harris, and Hass. These cases repudiated the statement in Agnello that no use at all may be made of illegally obtained evidence. - Furthermore, in Walder, the Court said that in Agnello, the Government had “smuggled in” the impeaching opportunity in the course of cross-examination. The Court also relied on the statement in Agnello, supra, at 35, that Agnello had done nothing “to justify cross-examination in respect of the evidence claimed to have been obtained by the search.” The implication of Walder is that Agnello was a case of cross-examination having too tenuous a connection with any subject opened upon direct examination to permit impeachment by tainted evidence. In reversing the District Court in the case before us, the Court of Appeals did not stop to consider how closely the cross-examination about the T-shirt and the luggage was connected with matters gone into in direct examination. If these questions would have been suggested to a reasonably competent cross-examiner by Havens’ direct testimony, they were not “smuggled in”; and forbidding the Government to impeach the answers to these questions by using contrary and reliable evidence in its possession fails to take account of our cases, particularly Harris and Hass. In both cases, the Court stressed the importance of arriving at the truth in criminal trials, as well as the defendant’s obligation to speak the truth in response to proper questions. We rejected the notion that the defendant’s constitutional shield against having illegally seized evidence used against him could be “perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” 401 U. S., at 226. See also Oregon v. Hass, supra, at 722, 723. Both cases also held that the deterrent function of the rules excluding unconstitutionally obtained evidence is sufficiently served by denying its use to the government on its direct case. It was only a “speculative possibility” that also making it unavailable to the government for otherwise proper impeachment would contribute substantially in this respect. Harris v. New York, supra, at 225. Oregon v. Hass, supra, at 723. Neither Harris nor Hass involved the impeachment of assertedly false testimony first given on cross-examination, but the reasoning of those cases controls this one. There is no gainsaying that arriving at the truth is a fundamental goal of our legal system. Oregon v. Hass, supra, at 722. We have repeatedly insisted that when defendants testify, they must testify truthfully or suffer the consequences. This is true even though a defendant is compelled to testify against his will. Bryson v. United States, 396 U. S. 64, 72 (1969); United States v. Knox, 396 U. S. 77 (1969). It is essential, therefore, to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth. The defendant’s obligation to testify truthfully is fully binding on him when he is cross-examined. His privilege against self-incrimination does not shield him from proper questioning. Brown v. United States, 356 U. S. 148, 154-155 (1958). He would unquestionably be subject to a perjury prosecution if he knowingly lies on cross-examination. Cf. United States v. Apfelbaum, 445 U. S. 115 (1980); Bryson v. United States, supra; United States v. Knox, supra; United States v. Wong, 431 U. S. 174 (1977). In terms of impeaching a defendant’s seemingly false statements with his prior inconsistent utterances or with other reliable evidence available to the government, we see no difference of constitutional magnitude between the defendant’s statements on direct examination and his answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination. Without this opportunity, the normal function of cross-examination would be severely impeded. We also think that the policies of the exclusionary rule no more bar impeachment here than they did in Walder, Harris, and Hass. In those cases, the ends of the exclusionary rules were thought adequately implemented by denying the government the use of the challenged evidence to make out its ease in chief. The incremental furthering of those ends by forbidding impeachment of the defendant who testifies was deemed insufficient to permit or require that false testimony go unchallenged, with the resulting impairment of the integrity of the factfinding goals of the criminal trial. We reaffirm this assessment of the competing interests, and hold that a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt. In arriving at its judgment, the Court of Appeals noted that in response to defense counsel’s objection to the impeaching evidence on the ground that the matter had not been “covered on direct,” the trial court had remarked that “[i]t does not have to be covered on direct.” The Court of Appeals thought this was error since in its view illegally seized evidence could be used only to impeach a statement made on direct examination. As we have indicated, we hold a contrary view; and we do not understand the District Court to have indicated that the Government’s question, the answer to which is sought to be impeached, need not be proper cross-examination in the first instance. The Court of Appeals did not suggest that either the cross-examination or the impeachment of Havens would have been improper absent the use of illegally seized evidence, and we cannot accept respondent’s suggestions that because of the illegal search and seizure, the Government’s questions about the T-shirt were improper cross-examination. McLeroth testified that Havens had assisted him in preparing the T-shirt for smuggling. Havens, in his direct testimony, acknowledged McLeroth’s prior testimony that the cocaine “was taped or draped around his body and so on” but denied that he had “ever engage [d] in that kind of activity with Mr. McLeroth. . . .” This testimony could easily be understood as a denial of any connection with McLeroth’s T-shirt and as a contradiction of McLeroth’s testimony. Quite reasonably, it seems to us, the Government on cross-examination called attention to his answers on direct and then asked whether he had anything to do with sewing the cotton swatches on McLeroth’s T-shirt. This was cross-examination growing out of Havens’ direct testimony; and, as we hold above, the ensuing impeachment did not violate Havens’ constitutional rights. We reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion. So ordered. 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_appel1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. PEELLE CO. v. SECURITY FIRE DOOR CO. No. 9314. Circuit Court of Appeals, Eighth Circuit. April 14, 1932. Thomas J. Johnston, of New York City (J. Granville Meyers, of New York City, on the brief), for appellant. Joseph J. Gravely, of St. Louis, Mo. (James A. Carr and T. Percy Carr, both of St. Louis, Mo., on the brief), for appellee. Before STONE and BOOTH, Circuit Judges, and WYMAN, District Judge. STONE, Circuit Judge. This is an action for alleged infringement of claims 1, 2, 3, 4, 7, 8, and 9 of patent No. 1,414,387, to Benjamin Wexler. The defenses are invalidity of the patent and noninfringement. Prom a decree adjudging the claims involved invalid, plaintiff takes this appeal. This patent is for a dumb-waiter door structure. The structure embodies a rigid metal frame at the door opening having guides or tracks wherein vertically travel two counterbalanced half doors. The entire construction, including the doors, is made and shipped as a unit. The main object of the invention is stated to be a construction capable of installation as a unit and, at the same time, insuring a fixed permanent relation of parts which will insure free easy movement of the doors after installation. The court found that the claims involved were invalid because anticipated by various patents and by several catalogued disclosures cited in the memorandum opinion. We have carefully examined each of the numerous urged citations against the patent. Some of these citations show only a part or only some of the principles involved in these claims, but several of them rather clearly set out the entire idea. It is unnecessary to discuss these in detail, since one of them, Dugdale No. 1,133,794, is sufficient to avoid this patent. However, we may observe that the elements are old. The angle side members are found in numerous patents such as Cross, No. 560,396; Dug-dale, 1,133,794; and others; also in Catalogues A and B of Variety Manufacturing Company; and in Thorpe Catalogue, all of which were offered in evidence. The two-part doors counterbalanced are also found in many patents including Dugdale and Cross and prior Wexler patents; also in the Catalogues of the Variety Manufacturing Company. The guides or tracks secured to a flange of the vertical side bars are found in the Variety Manufacturing Company Catalogues B and A; in the Cross patent; and in the Dugdale patent. The use of anchors for embedding in the wall are found in the Appleton patent, No. 931,714, and in the Variety Manufacturing Company Catalogue B. Sill and lintel members secured to the vertical angle side members and spaced apart are found in Dugdale, and in the Variety Manufacturing Company Catalogues A and B. Nor is the combination new. It is found in Dugdale; in the Catalogues A and B of the Variety Manufacturing Company; and, furthermore, is covered by the fact testimony given on the trial. In Dugdale there are the same character of doors, door movement members and frame, and the entire device is designed to be manufactured as a unit “ready to be set up at the place of the chute which said doors are to occupy.” Not only are all of the outlines of the patent in suit shown in Dugdale, but there is much similarity in detail. It is contended by the appellant that the prior art disclosed by some of the patents is not of dumb-waiter doors, but of freight elevator doors, and that freight elevator doors are not in the same art with dumbwaiter doors. We discover no merit in this contention. An examination of the structures disclosed shows that the main difference is one of size, and the evidence on the trial also disclosed that dumb-waiters were considered in the same art as freight elevators, only that they were smaller. We are therefore of the opinion that the prior art, including freight elevator door construction, is to be considered. The decree should be and 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 category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TELE-COMMUNICATIONS OF KEY WEST, INC., Appellant v. UNITED STATES of America et al. No. 84-5008. United States Court of Appeals, District of Columbia Circuit. Argued Nov. 30, 1984. Decided April 2, 1985. Jay L. Cohen, Washington, D.C., with whom Fred Israel, Washington, D.C., was on the brief, for appellant. Alan R. Plutzik, Washington, D.C., entered an appearance for appellant. Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lam-berth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees. Before WRIGHT and MIKVA, Circuit Judges, and MacKINNON, Senior Circuit Judge. Opinion for the court filed by Circuit Judge WRIGHT. J. SKELLY WRIGHT, Circuit Judge: This is an appeal from a District Court order dismissing, for failure to state a claim, a complaint filed by Tele-Communications of Key West, Inc. (TCI), a purveyor of cable television service. The issue presented is whether the dismissal was, in fact, proper under Federal Rule of Civil Procedure 12(b)(6). As discussed below, we hold that the District Court erroneously dismissed TCI’s First and Fifth Amendment claims but properly dismissed TCI’s statutory antitrust claim. Consequently, we affirm in part and reverse and remand in part. I. Background The undisputed facts underlying this case are as follows. For ten years, from 1974 through 1983, TCI (and its predecessor-in-interest) provided cable television service to Homestead Air Force Base in Florida. In June of 1983, however, the Air Force requested bids for cable television service to the base from a variety of parties. After receiving bids, the Air Force awarded an exclusive service contract to another company and ordered TCI to remove its cables and other equipment from the base’s cable television right-of-way by the end of December 31, 1983. On December 13, 1983, TCI filed an action in the District Court here requesting injunctive and declaratory relief. See Complaint for Declaratory and Injunctive Relief for Injury to First Amendment Rights, Fifth Amendment Rights and Antitrust Violations, Appendix (App.) at B. Specifically, TGI requested an order requiring the Air Force to allow TCI to leave its cable equipment where it was; such an order would have enabled TCI to continue service to the base. See Complaint, supra, at 9. TCI also requested that the court issue a declaratory judgment to the effect that any attempt on the part of the Air Force to prevent TCI from continuing to serve those on the base who desired such service would violate TCI’s First and Fifth Amendment rights and the Sherman Antitrust Act. See id. at 8-9. The same day TCI also filed a motion for a preliminary injunction, contending that it would be irreparably harmed if it was not granted relief by December 31, 1983. See Motion for Preliminary Injunction. The next day, December 14, 1983, a hearing on this motion was set for December 27, 1983. On December 23, 1983, the Air Force filed a motion to dismiss TCI’s entire complaint for failure to state a claim or, in the alternative, for summary judgment. TCI, on December 27, 1983, then filed an opposition to the motion to dismiss and a motion to strike the Air Force’s motion for summary judgment or, in the alternative, for a discovery and briefing schedule for cross-motions for summary judgment. In these responses TCI asserted that the standard for dismissal had not been met and that the standard and procedures for summary judgment had not been complied with. See Opposition to Defendants’ Motion to Dismiss Under Rule 12(b)(6); Plaintiff’s Motion and Memorandum of Points and Authorities to Strike Defendants’ Motion for Summary Judgment or, in the Alternative, for a Discovery and Briefing Schedule for Cross-Motions for Summary Judgment. On December 27,1983, the District Court heard oral argument on TCI’s motion for a preliminary injunction and on the Air Force’s motion to dismiss. At that time the court observed that it would not dispose of the case on summary judgment because to do so would be unfair. See Excerpt of Proceedings at 3, App.L. The next day, December 28, 1983, the District Court issued an order and memorandum opinion dismissing the complaint and denying the request for a preliminary injunction. See Tele-Communications of Key West, Inc. v. United States, 580 F.Supp. 11 (D.D.C.1983). TCI now appeals from the dismissal of its claims for permanent injunctive and declaratory relief, asserting that that dismissal was erroneous under the Rule 12 standards or as a summary judgment. The Air Force, on the contrary, defends the District Court’s decision as procedurally proper and substantively correct. After determining the correct standard of review and evaluating the propriety of the District Court’s decision, we will examine the District Court’s disposition of each of TCI’s claims. II. The Standard for Our Review of the District Court’s Decision TCI’s first contention on appeal is that reversal is required because the District Court erroneously considered materials outside the pleadings in considering the motion to dismiss. The Air Force does not disagree with the proposition that the District Court had such external materials before it at the time it was contemplating the motion to dismiss; the Air Force explains this phenomenon by noting that TCI’s request for a preliminary injunction was before the court at the same time and that the Air Force presented extra-pleading materials in opposing that motion. See brief for appellees at 5 n. 3. The Air Force apparently contends, however, that the District Court did in fact, in its review of the motion to dismiss, take all the facts alleged in TCI’s complaint as true. See id. at 5. Based on this interpretation of the District Court’s decision, the Air Force disagrees with TCI’s contention that reversal is mandated. The Air Force also contends in the alternative that if the District Court did consider materials outside of TCI’s complaint, the District Court’s decision should be affirmed as a summary judgment. See id. at 5 n. 3. We conclude that, in the circumstances of this case, the dismissal cannot properly be treated as a summary judgment, even if materials outside of TCI’s complaint were considered by the District Court. We also conclude, however, that although consideration of external materials is improper under a Rule 12(b)(6) motion to dismiss, reversal based on such consideration alone would serve no useful purpose. Where such consideration has occurred, rather, normal 12(b)(6) review will be in order. A. Potential for Reviewing the District Court Decision as a Summary Judgment The normal course of action when materials outside the complaint are considered is for a nominal motion to dismiss to be treated as a motion for summary judgment. As Rule 12(b) states, “If, on a [Rule 12(b)(6) motion], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” See also Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam), Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595 F.2d 711, 719 n. 41 (D.C.Cir.1978); Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 949 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976). There are constraints on a court’s ability to thus transform a motion to dismiss, however. Specifically, Rule 12(b) provides further that, if a motion to dismiss is converted to a motion for summary judgment, “all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” See also Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C.Cir.1982). Under Rule 56 such materials include affidavits and documentary evidence that would show that a genuine issue of material fact existed. Rule 56 contains a similar but more explicit constraint: “The motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing [on the motion].” Rule 56(c). Thus a reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result of such a situation. Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed. Here, treatment of the dismissal as a summary judgment would not be appropriate. The motion was served on TCI on December 23, 1983, and argument was heard on December 27, 1983 — a mere four days later. This scheduling complies with neither the explicit 10-day requirement of Rule 56(c) nor the reasonable-period-for-response requirement of Rule 12(b). (The four-day period, as TCI notes in its brief, spanned a weekend and included Christmas and Christmas Eve.) Consequently, the motion cannot properly be recast as a motion for summary judgment, and the District Court’s decision must stand or fall as a pure Rule 12(b)(6) dismissal. B. Review of the District Court Decision as a Dismissal under Rule 12(b)(6) As recently reaffirmed by this court, “Dismissal for failure to state a claim for relief is proper only when ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ All factual doubts must be resolved and all inferences made in favor of the plaintiff[ ].” Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C.Cir. 1984) (en banc) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (emphasis added by the Ramirez court; footnotes omitted)). Further, as implied by the summary judgment discussion above, a Rule 12(b)(6) disposition must be made on the face of the complaint alone. Consideration of external materials, which would normally initiate conversion of the motion to one for summary judgment, cannot properly take place under a dismissal for failure to state a claim. This limitation cannot be avoided simply because the party against whom the dismissal was granted desired an expeditious disposition of a concurrent motion for a preliminary injunction. Such reasoning would allow circumvention of the Rule 12/Rule 56 constraints whenever a claim was joined with a request for preliminary relief. This is not a result allowable under the Federal Rules. As noted above, TCI contends that any action by the District Court that was inconsistent with the Rule 12 requirements makes that court’s dismissal automatically reversible. Thus TCI apparently would have us reverse and remand if the District Court failed to take the facts as alleged in TCI’s complaint and considered materials outside of its pleading. We do not believe that this course would serve the interests of justice or of judicial economy. Although it is clearly improper for a District Court to fail to comply with the technical and substantive requirements of the applicable federal rules, we do not see what purpose would be served by remanding a case to the District Court for a purely legal determination that we are fully competent to make ourselves. We note that this is proper only where no factual determinations need be made, that is, where the question is entirely one of law. Such is the case with a motion to dismiss for failure to state a claim. Consequently, where we determine that the District Court has .improperly failed to follow the strictures of Rule 12, we will determine whether the dismissal was appropriate in any case under Rule 12 as properly applied rather than remand for such a determination in the District Court. In reality, therefore, our review in a case in which the District Court improperly considered materials outside of the complaint is similar to normal review of Rule 12(b)(6) dismissals: For this court to affirm such a dismissal, it must be self-evident from the face of the complaint, resolving all doubts and drawing all inferences in favor of the plaintiff, that the plaintiff is not entitled to any relief. Our review will differ only in that we must be especially careful to scrupulously avoid making factual assumptions which appear reasonable or even obvious from the record but which cannot properly be drawn from the plaintiff’s complaint. With this in mind, we turn to the specific claims raised by TCI and dismissed by the District Court. III. Review of the Dismissal of TCI’s Claims A. First Amendment Claim In its complaint TCI alleged that “defendants have dedicated certain rights-of-way, poles, support structures and land for use in the provision of cable television services and programming to the servicemen and their families residing at Homestead Air Force Base. Those facilities are essential to the conduct of a cable television enterprise at Homestead Air Force Base.” Complaint, supra, 11 8, App. B. TCI further alleged that it was in the business of providing cable television service and that the defendants, through a solicitation process, had determined that TCI could no longer operate on the base, that is, use the facilities essential to operating on the base. See id. at 1T1f 2, 13-14, 17-19. TCI also alleged that “[t]here are no legal or practical reasons why two companies cannot compete directly to provide cable television services to customers at Homestead Air Force Base.” Id. at 1120. Finally, TCI alleged that, given these facts, the Air Force’s planned exclusion of TCI from the base violated TCI’s First Amendment right to disseminate “inter alia, news, entertainment and information to residents of Homestead Air Force Base * * Id. at 1123. In comparison with TCI’s factual allegations, the District Court, in its memorandum opinion accompanying its dismissal of TCI’s claim, noted that “[pjlaintiff seeks access to a military installation dedicated to military use.” 580 F.Supp. at 14. The District Court also stated that “granting access to multiple cable television companies would involve significant burdens on the military installation and its mission, and would negate legitimate advantages the Air Force enjoys as a result of limiting access to a single such cable television firm.” Id. (The District Court noted in a footnote that it was obliged to consider the effects of multiple cable companies rather than two because eight companies had bid for the contract. Id. n. 2.) The District Court went on to explicate precisely what those advantages enjoyed by the Air Force were: “In the Air Force’s view, permitting multiple cable operators onto the base rather than soliciting competitive bids for the rights to an exclusive franchise would also raise costs to individual subscribers, thus implicating the military’s interest in the morale of those in its service. It is apparent, then, that the government’s restriction on access to the base is grounded on legitimate and rational military objectives.” Id. Using these factual assumptions, the District Court concluded that, although TCI does “enjoy[] the protections of the First Amendment,” id. at 13, “[ijnasmuch as the challenged denial of access involves a forum traditionally not open to public communication, rationally furthers a legitimate government interest, and is content neutral, it does not violate plaintiff’s First Amendment rights.” Id. at 15. The facts relied upon by the District Court in reaching this conclusion, however, appear nowhere in TCI’s complaint. In fact, they are exactly the opposite factual assumptions from those a court would make if it, as required, took the assertions in the complaint as given and then resolved all factual doubts and inferences in favor of the pleader. TCI alleged that the rights-of-way necessary to conduct cable television services had been dedicated to such use; the District Court found that the entire military installation was dedicated to military use (presumably with no exceptions). TCI alleged that no legal or practical burdens would accrue from two cable television companies competing and in no way indicated that more than two companies might end up competing; the District Court assumed that eight companies might compete and that this would constitute a significant burden. Thus the District Court’s factual assumptions cannot serve as the basis for an affirmable Rule 12(b)(6) dismissal of TCI’s First Amendment claim. Thus we must consider whether, applying the correct standard and using TCI’s factual allegations only, TCI’s complaint did in fact state a First Amendment claim. First, we must decide the question whether TCI’s enterprise is protected by the First Amendment at all. If it is, we must then consider whether TCI has stated a valid First Amendment claim, taking as true the factual allegations in its complaint and applying the applicable law. The District Court found that, under this court’s decision in Home Box Office, Inc. v. FCC, 567 F.2d 9, 43-51 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977), TCI’s activity of providing cable television service was entitled to some First Amendment protection. See 580 F.Supp. at 13. With this step of the District Court’s analysis, we agree entirely. See also Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1404 (9th Cir.1985); Omega Satellite Products v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982); Community Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981), cert. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1054 & n. 70 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Whether or not TCI produces any original programming of its own, its activities of transmitting and packaging programming mandate that it receive First Amendment protection. See Omega Satellite Products, supra, 694 F.2d at 127; Weaver v. Jordan, 64 Cal.2d 235, 49 Cal. Rptr. 537, 411 P.2d 289, cert. denied, 385 U.S. 844, 87 S.Ct. 49, 17 L.Ed.2d 75 (1966); cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (applying First Amendment to sale and distribution of publications). Thus we turn to the subsequent question whether TCI has adequately alleged that its First Amendment rights were violated in the instant situation. The next step, therefore, is to determine whether, under the applicable First Amendment law, the particular factual allegations made by TCI state a viable claim. This determination self-evidently depends upon the contours of the applicable First Amendment law. Unfortunately, describing the contours of that law is difficult because of a lack of direct precedent on the question. As noted by the parties, however, there is a substantial body of Supreme Court case law that confronts the general problem of allowing access to government-owned property for the purpose of exercising First Amendment rights; this is the body of'cases that comprise'the public forum doctrine jurisprudence. The public forum docixinfí, as described by these cases, defines situations in which the government cannot close government-owned property to parties who desire to use that property as a forum for exercising their First Amendment rights. Specifically, these cases appear to provide for three categories of government-owned property — two types of public forums and one “nonforum” category. See generally Perry Education Ass ’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-956, 74 L.Ed.2d 794 (1983) (summarizing the three categories discussed below). First, property that historically has been both open to the public and available to anyone for use as a forum for the exercise of the First Amendment right of free speech constitutes an unconditional public forum. Such forums include facilities like streets and parks. See, e.g., United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (public sidewalks). Second, property that has not been traditionally open for speech but that has been opened by the government as a forum for speech, often for a particular type of speech, also constitutes a public forum. Such property as municipal theaters, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), and school classrooms that are held open for student use, see Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), falls into this second category of public forums. See also Lebron v. WMATA, 749 F.2d 893 (D.C.Cir.1984) (subway display space). In contrast, property that has been neither historically open to the public nor specifically opened by the government for use as a forum for speech does not constitute a public forum. Property such as military bases with restricted access, see Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976), and intra-school mailboxes, see Perry, supra, has been held to fall into this third “nonforum” category. The designation of property as a public forum or as a “nonforum” carries with it substantive effects regarding the extent and type of restrictions that the government may place upon the speech by the general public that may occur there. Government restrictions on speech in public forums of either the first or second type are subject to strict requirements. In public forums the government may restrict speech only (1) by enforcing time, place, and manner restrictions if those restrictions are content-neutral and narrowly tailored to serve a significant government interest, or (2) by imposing content-based exclusions if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. See Perry, supra, 460 U.S. at 45-46, 103 S.Ct. at 954-956. With respect to nonforums, however, the government may “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id. at 46, 103 S.Ct. at 955; see also U.S. Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 131 n. 7, 101 S.Ct. 2676, 2686 n. 7, 69 L.Ed.2d 517 (1981). Applying this public forum jurisprudence to the factual allegations in TCI’s complaint, we find that TCI has adequately alleged a First Amendment cause of action. TCI alleged in its complaint that there were no reasons, practical or legal, why two cable television companies could not simultaneously use the cable rights-of-way on Homestead Air Force Base. This allegation, if taken as true, would mean that TCI’s First Amendment rights had been infringed if the right-of-way was a public forum of either kind or if it was a nonforum: If the property is a public forum, the government may restrict speech only to serve significant (if content-neutral) or compelling (if not content-neutral) interests; if the property is a nonforum, the government may restrict speech only if such restriction is reasonable. An allegation that there were no reasons for restricting speech thus states a claim under either analysis. (It does appear, however, that TCI also adequately alleged that the right-of-way was a public forum by its allegation that the Air Force had dedicated the right-of-way for cable television use.) Thus we hold that TCI did state a First Amendment claim upon which relief could be granted. Consequently, we reverse and remand to the District Court. Because of the relative novelty of TCI’s claim, we add an observation on the effect of our holding. We note first that two of the three circuits that have previously considered the issue of cable television’s right of access to government-owned property for the purpose of communicating to viewers have not used the public forum doctrine in their analysis. These two circuits, rather, seemed instead simply to balance the competing interests involved. See Community Communications, supra, 660 F.2d at 1375-1380 (balancing the competing interests of the cable television company’s desire to communicate and the municipality’s need to preserve certain public resources that might be burdened by the provision of cable television service); see also Omega Satellite Products, supra, 694 F.2d at 127-128 (balancing interests of cable company with burden on public resources and assumed fact that cable television represents a natural monopoly). The third circuit to address this issue did note the potential relevance of the public forum doctrine but did not hold that the public forum doctrine governed without alteration in this context; it seemed to use the doctrine merely as additional support for a conclusion already reached on other grounds. See Preferred Communications, Inc., supra, 754 F.2d at 1407-1409. We note also that the Supreme Court has often stated that “[ejach medium of expression * * * must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975). See also Metromedia, Inc. v. San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion); FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3039, 57 L.Ed.2d 1073 (1978); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). Thus, although historical First Amendment jurisprudence signals the analytic approach to be used in determining the First Amendment protection due a new medium, a court describing that protection must be careful to adapt that jurisprudence to the new context. In light of these observations, we wish to make clear that our holding that TCI has stated a First Amendment claim under public forum jurisprudence is not a holding that a different and perhaps more appropriate First Amendment analysis may not properly be developed during the proceedings on remand. B. Fifth Amendment Claim The same allegations in TCI’s complaint that preclude a Rule 12(b)(6) dismissal of its First Amendment claim also preclude such a dismissal of its Fifth Amendment claim. As noted above, the District Court found that the Air Force had legitimate government interests in denying access to TCI. The District Court went on to note that “[n]o due process violation has occurred since plaintiff’s First Amendment rights have not been infringed and there is no dispute over the conduct of the bid process itself.” 580 F.Supp. at 15. Having determined that TCI’s complaint did in fact state a First Amendment claim, we must now reexamine the dismissal of the Fifth Amendment claim as well, bearing in mind that none of the District Court’s subsidiary factual conclusions can be adopted unless they are clearly alleged in the complaint. From the complaint we glean three factual assumptions that must be made in this Rule 12(b)(6) determination: First, that the Air Force had dedicated the necessary property to cable television transmission; second, that TCI had been denied access to this property; and third, that there were no reasons for not allowing two cable companies to use that property. See Complaint, supra, at if 118, 17-18, 20. Using these factual allegations, we now apply Fifth Amendment law to determine whether a claim was stated by TCI. The Due Process Clause of the Fifth Amendment has been held to include an equal protection provision. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Under equal protection doctrine, differential treatment of parties is constitutional only if adequately related to a sufficient governmental interest. Ordinarily, the test is that it must be rationally related to a legitimate state interest. Where the differential treatment burdens the exercise of a fundamental right such as the First Amendment’s freedom of speech, however, equal protection demands more. See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (“discriminations among pickets must be tailored to serve a substantial governmental interest”); see also Dunn v. Blumstein, 405 U.S. 330, 342-343, 92 S.Ct. 995, 1003-1004, 31 L.Ed.2d 274 (1972). As noted above, TCI’s complaint clearly states that there are no legal or practical reasons why two cable television companies cannot compete directly to service Homestead Air Force Base. This allegation suffices to withstand a motion to dismiss for failure to state a claim, whether or not TCI’s First Amendment rights may have been infringed. For even if TCI’s First Amendment rights have not been burdened, the restriction on TCI may violate the equal protection requirement 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:
sc_casesource	158	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. PENNSYLVANIA v. GOLDHAMMER No. 84-1852. Decided November 12, 1985 Per Curiam. The Supreme Court of Pennsylvania held below that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution barred the resentencing of respondent. 507 Pa. 236, 489 A. 2d 1307 (1985). We grant certiorari, and, on the basis of our decision in United States v. DiFrancesco, 449 U. S. 117 (1980), we reverse and remand. The motion of respondent for leave to proceed in forma pauperis is granted. Respondent was convicted in the Philadelphia Court of Common Pleas on 56 counts of forgery and 56 counts of theft. He was sentenced by the trial court to two-to-five years of imprisonment on a single theft count and five years of probation on one of the forgery counts. Sentence was suspended on the remaining counts. Respondent appealed all 112 convictions to the Superior Court of Pennsylvania. That court ruled that the statute of limitations barred the prosecution of 34 of the theft counts, including the count on which respondent had received his sentence of imprisonment. On appeal by the Commonwealth, the Supreme Court of Pennsylvania affirmed the Superior Court’s ruling on the statute of limitations. In addition, the Supreme Court of Pennsylvania denied petitioner’s request that the case be remanded to the trial court for resentencing on the remaining 22 theft counts. The court acknowledged that a defendant could be twice sentenced for the same count when there was an intervening retrial at the request of the defendant, but it held that resentencing on the counts which were affirmed after an appeal by the Commonwealth is barred by the Double Jeopardy Clause when the sentence of imprisonment on another count is vacated. 507 Pa., at 248-251, 489 A. 2d, at 1314-1315, citing North Carolina v. Pearce, 395 U. S. 711 (1969). The Pennsylvania Supreme Court’s rationale is inconsistent with the rationale of the holding of this Court in DiFrancesco, supra. In DiFrancesco we upheld the constitutionality of 18 U. S. C. §3576, which allows the United States to appeal to the court of appeals the sentence given a “dangerous special offender” by a district court, and allows the court of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings. We noted that the decisions of this Court “clearly establish that a sentencing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal.” DiFrancesco, supra, at 134. In North Carolina v. Pearce, supra, we held that a court could sentence a defendant on retrial more severely than after the first trial. Any distinction between the situation in Pearce and that in DiFrancesco is “no more than a ‘conceptual nicety.’” DiFrancesco, supra, at 136 (quoting Pearce, supra, at 722). Indeed, a resentenc-ing after an appeal intrudes even less upon the values protected by the Double Jeopardy Clause than does a resentenc-ing after retrial: “[T]he basic design of the double jeopardy provision [is to] bar . . . repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. These considerations, however, have no significant application to the prosecution’s statutorily granted right to review a sentence. This limited appeal does not involve a retrial or approximate the ordeal of a trial on the basic issue of guilt or innocence.” DiFrancesco, supra, at 136. In DiFrancesco a federal statute clearly allowed the appellate review of the sentences at issue. The Court noted that, in light of that statute, the defendant could not claim any expectation of finality in his original sentencing. 449 U. S., at 136,139. Here, because the Pennsylvania Supreme Court held that resentencing was barred by the Double Jeopardy Clause, there was no need to consider below whether the Pennsylvania laws in effect at the time allowed the State to obtain review of the sentences on the counts for which the sentence had been suspended. We reverse and remand the case to the Supreme Court of Pennsylvania for a determination of that issue, and for further consideration of this case in light of DiFrancesco, supra. Reversed and remanded. Justice Brennan dissents from summary disposition and would vote to deny the petition. Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting). Justice Blackmun would grant the petition and set the case for argument. 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. 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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:
songer_appel1_4_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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. The CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), Plaintiff-Appellee, v. CORPORACION HOTELERA de PUERTO RICO et al., Defendants-Appellees, Municipality of San Juan, Intervenor-Appellant. No. 74-1231. United States Court of Appeals, First Circuit. Argued Feb. 5, 1975. Decided May 14, 1975. Robert E. Schneider, Jr., Sahturee, P. R., for intervenor-appellant. Justo Gorbea Varona, Asst. Sol. Gen., with whom Miriam Naveira De Rodon, Sol. Gen., San Juan, P. R., was on brief, for the Secretary of the Treasury of Puerto Rico. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. PER CURIAM. This is an appeal from an order of the District Court for the District of Puerto Rico denying an application for leave to intervene. The suit began in August, 1967, when the Chase Manhattan Bank filed to foreclose on a mortgage of a tourist hotel held by the Corporación Hotelera de Puerto Rico, which soon thereafter became bankrupt. The Secretary of the Treasury of Puerto Rico was joined as a party defendant, and he alleged that the mortgaged property was subject to a lien for unpaid property taxes and claimed priority over the proceeds from its sale. In 1968 the court entered a judgment in favor of Chase Manhattan for foreclosure of its mortgage. The judgment recognized and provided for the priority of the tax lien. After unsuccessful attempts at negotiated sales, and after several defaults by successful bidders at public sales of the property in execution of the foreclosure judgment, a sale to San Jeronimo Hotel Corporation was confirmed in November, 1972. In December, 1972, the court ordered that from rental income held by the court the sum of $831,438.61 (increased the next month to $832,875.51) be paid to the Secretary of the Treasury to be held in escrow, pending a determination as to tax liability, to cover the lien for taxes on the property and thus enable the buyer to obtain a clear title. On June 13, 1973, pursuant to the Industrial Tax Exemption Act of 1963, 13 L.P.R.A. § 252a, the Governor of Puerto Rico granted a tax exemption to the bankrupt corporation dating back to the time of its application in 1965. The exemption did not include the hotel’s casino. See id. § 252a(f)(4). In view of the tax exemption, on June 25, 1973, Amron Credit Corporation and Enrique Campo del Toro, holders of second mortgages on the property, requested that the $832,-875.51 held by the Secretary of the Treasury be released and disbursed to them. On August 1, 1973, the Secretary of the Treasury stated to the court that $333,-253.71 was still due because the property was leased to a non-exempted business after May 27, 1971, but that it had no interest in funds beyond that amount. The Secretary accordingly consented to release the balance of $499,621.80 if the trustee of the bankrupt accepted the terms of the grant of exemption. On August 29, 1973, the trustee so agreed, and on September 5, 1973, the court ordered that the $499,621.80 be disbursed to the two second mortgagees, and that the remaining $333,253.71 be retained in escrow pending determination of the bankrupt’s tax liability on that amount. On September 14, 1973, the Secretary disbursed the $499,621.80. On November 30, 1973, the Municipality of San Juan filed a motion to intervene, asserting that the distribution deprived it of tax revenues not exempted by the Governor’s grant or by state law. The district court denied the motion on the ground, among others, that the intervention was untimely, and this appeal followed. Intervention in a federal court action is governed by Rule 24, Fed.R. Civ.P. Even when an applicant states a claim to intervention of right rather than seeks permissive intervention, the application must be timely if it is to be granted. Timeliness is to be gauged from all the circumstances, including the stage to which the proceedings have progressed before intervention is sought. The district court is to exercise its discretion in determining timeliness, and its ruling will not be disturbed on review unless there is an abuse of discretion. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). Here the Municipality’s motion to intervene is in effect a request that the court unscramble the distribution it ordered and reopen proceedings two-and-a-half months after the execution of its judgment. Intervention after judgment is unusual; it is granted only in very special circumstances. See J. Moore, 3B Federal Practice K 24.13 (1974 ed.). The Municipality was well aware that proceedings were in progress dispositive of its tax claims, and all relevant facts, such as the mortgagees’ formal request for release of the escrow funds and the Secretary’s response thereto, could have been readily determined from the court records. Indeed, correspondence between the Mayor of San Juan and the Secretary of the Treasury reveals that well prior to the final decree the former wrote to oppose the retroactive tax exemption and was advised that it had been granted. The Municipality argues that it could not have known that the Secretary would also consent to release tax claims for non-exempt property, such as the casino, but we think the burden was on the Municipality, if it wished to participate in whatever final disposition was made, to make known its desire pri- or to the entry of the final decree. It could not rely without murmur on the Secretary’s representation throughout the proceeding and, after a final decree was entered not to its liking, intervene and reopen. It is argued that ordinary principles of timeliness do not apply when a municipal corporation seeks to prevent the loss of tax revenues. We know of no support for such a contention, nor do we give credence to the assertion that appellant’s motion, if granted, would not adversely prejudice any parties or cause any disruption. Although a public body has a right to its lawful revenues, this right cannot override the importance to the federal judicial system, and to persons interested in the litigation, of orderly proceedings and of certainty of a final disposition. Thus even assuming, which is unclear, that the Municipality has any standing under Puerto Rican law to litigate a position adverse to that of the Secretary of Treasury, we are disinclined to facilitate a collateral attack upon a final decree that was entered with the participation of responsible Commonwealth officials who, insofar as anyone could tell at the time, were fully representing the Municipality’s interests. As the motion was untimely, the district court did not abuse its discretion in denying appellant’s motion. Affirmed. . The court had jurisdiction in the mortgage foreclosure action under the Banking Act of 1933, 12 U.S.C. § 632. . In addition to objecting to the Governor’s grant of the exemption to a bankrupt corporation, the Municipality alleged claims to taxes for the non-exempt portion of the property used for the casino, for the second part of fiscal 1972-73, and for the period before the exemption application and for the period between May 27, 1971, and July 1, 1971. . The district court stated that it lacked subject matter jurisdiction to grant some of the relief requested. Since we hold that the district court did not err in finding the motion to intervene to be untimely, we do not consider ,.he correctness of that ruling. . Rule 24 provides in pertinent part, “(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” . Throughout the proceedings in the district court the Secretary of Justice of Puerto Rico represented the Secretary of the Treasury. The Municipality’s claim to taxes derives from the Puerto Rican legislature, P.R.Const. Art. VI, § 2, and the Municipality has no ability to assess or collect taxes other than through the Treasury. See 13 L.P.R.A. § 447. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate 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_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. Harold B. CLAYTON, Appellant, v. BLACHOWSKE TRUCK LINES, INC. and Duane Blachowske, Individually, Appellees. No. 86-5330. United States Court of Appeals, Eighth Circuit. Submitted March 9, 1987. Decided April 7, 1987. Jeffrey G. Stephenson, St. Paul, Minn., for appellant. Gary G. Wollschlager, Fairmont, Minn., for appellees. Before McMILLIAN, BOWMAN, and WOLLMAN, Circuit Judges. PER CURIAM. Harold B. Clayton brought this action against Blachowske Truck Lines, Inc. (Bla-chowske Lines) and Duane Blachowske (Blachowske) alleging that he was wrongfully terminated due to his status as a member of the Minnesota National Guard, in violation of 38 U.S.C. § 2021(b)(3). Clayton also alleged state-law claims of breach of contract, promissory estoppel, unlawful discharge, breach of an implied convenant of good faith and fair dealing, and violations of Minn.Stat. § 192.34 and § 181.64. The district court granted defendants’ motion for summary judgment on Clayton’s claim under 38 U.S.C. § 2021(b)(3) and dismissed without prejudice the remaining counts. 640 F.Supp. 172. Clayton appeals. We affirm. Clayton began working for Blachowske Lines on January 9,1984, and worked there as a safety director until he was terminated on May 31,1984. In job interviews prior to being hired, Clayton informed Blachowske, president of Blachowske Lines, that he was a member of the Minnesota National Guard and was obligated to attend drills one weekend per month, as well as a two-week period each summer. Blachowske replied that this obligation was not a problem, but that since Saturday was a very important business day Clayton would be required to work those Saturdays that he was not engaged with the Guard. Clayton states that he was given four reasons by Blachowske for his discharge: (1) “screwing up” on a permit for a truck, (2) missing too many Saturdays from work, (3) taking long lunch breaks, and (4) not spending enough time in coveralls with the drivers. Clayton asserts that the only Saturdays he missed were those required for his Guard obligations. He argues that the other reasons given for his discharge were pretextual. He concedes that he left work at approximately noon on the other Saturdays, but claims that he had been given permission to leave early. Blachowske contends that Clayton was given the following reasons for his termination: (1) His inability to adequately obtain the permits essential for the operation of Blachowske Lines, (2) his inability to communicate with and work with the drivers for whom he had responsibility as safety director, (3) his failure to adequately establish a safety inspection program for Blachowske Lines, (4) his continued and repeated absences from work on Bla-chowske Lines on those Saturdays on which he was not obligated to report to the National Guard for active duty, and (5) for his general inability to perform his job and for causing general disruption in the office of Blachowske Lines. Additionally, Bla-chowske contends that Clayton charged a substantial number of long-distance phone calls to Blachowske Lines’ account. 38 U.S.C. § 2021(b)(3) provides in pertinent part: Any person who [is employed by a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve Component of the Armed Forces. The Supreme Court has stated that this section was “enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status.” Monroe v. Standard Oil Co., 452 U.S. 549, 559,101 S.Ct. 2510, 2516, 69 L.Ed.2d 226 (1981). In a thorough memorandum opinion, the district court found that even when viewed in the light most favorable to Clayton, the record showed that he had not been terminated solely because of his Reserve status. It therefore granted defendants’ motion for summary judgment and dismissed Clayton’s pendent state claims. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Finding no error of fact or law, we affirm the judgment on the basis of the district court’s opinion. See 8th Cir.R. 14. . The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota. 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_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. WEINER v. SENTINEL FIRE INS. CO. et al. COLIN v. SAME. No. 133. Circuit Court of Appeals, Second Circuit. Jan. 11, 1937. Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges. Mendes, Krisel & Lessall, of New York City (Herman Mendes and Jacob Krisel, both of New York City, of counsel), for defendant-appellant Fred Colin. Powers, Kaplan & Berger, of New York City (Abraham Kaplan and George I. Gross, both of New York City, of counsel), for defendants-appellees. AUGUSTUS N. HAND, Circuit Judge. One Max Brandenburg was the owner of a bond and mortgage made to him by Kady Schaffer. The mortgage was to secure payment of the sum of $32,000, was a first lien on premises in Westchester county, N. Y., and contained a covenant that the mortgagor should “keep- the buildings on the premises insured against loss by fire for the benefit of the mortgagee.” About three years after the making of the bond and mortgage Brandenburg assigned his interest to one Stein, who thereafter reassigned it to Brandenburg. The principal having been reduced to $29,500, Brandenburg assigned the bond and mortgage to the defendant New York Title & Mortgage Company. On the date of this assignment the latter company entered into a participation agreement with Brandenburg which provided that it should have a share in the bond and mortgage to the extent of $22,000 and interest at the rate of 5% per cent, per annum, and that Brandenburg was to be the owner of the balance but that the ownership of the Title & Mortgage Company should be superior to that of Brandenburg. The agreement also provided that the Title & Mortgage Company might assign to any individual its interest in the bond and mortgage not to exceed $22,000, and was authorized to collect the entire income derived therefrom, retaining, however, the amount applicable to its share, while paying the balance to Brandenburg. It also authorized the Title & Mortgage Company to receive. payment of the entire principal, but obliged it to account to Brandenburg for any part received in excess of $22,000. The agreement further provided that the Title & Mortgage Company should “have all the rights of any holder of said bond and mortgage, and in the event of any default * * * the exclusive right to foreclose the same and receive the proceeds of sale from the Referee,” but that Brandenburg should in any “event have the right to an accounting for all moneys received” by the Title & Mortgage Company in excess of its ownership in said bond and mortgage. It added that: “All rights and authority-given under this article by the party of the second part (i. e. Brandenburg) are irrevocable.” The final article of the agreement provided that the Title & Mortgage Company was to notify Brandenburg of any default on the bond and mortgage and of any foreclosure by making the latter or his assigns a defendant in any foreclosure suit without further notice, but was to be under no other obligation to protect the interest of Brandenburg under any such suit or upon any sale under any such foreclosure. After the making of the participation agreement with Brandenburg, the Title & Mortgage Company assigned its superior interest in the bond and mortgage to the defendants Chase National Bank and William G. Barr as trustees under the will of Robert I. Barr, deceased, and guaranteed payment thereof to the extent of such superior interest. Under the instrument of guarantee the Title. & Mortgage Company was made the agent of the trustees “to sue for and receive the proceeds of any policy of fire insurance covering the mortgaged premises in favor of the insured.” On August 12, 1931, Fred Colin, the defendant-appellant, purchased the junior participating interest in the bond and mortgage from Brandenburg. Prior to that time the plaintiff Weiner had become the owner of the mortgaged premises, and policies of fire insurance were issued by Sentinel Fire Insurance Company and Rhode Island Insurance Company, defendants-appellees, insuring Weiner against loss by fire, the first company in the sum of $10,000, and the second in the sum of $22,000. Each policy contained the provision: “Loss, if any payable to New York Title & Mortgage Company as 1st mortgagee,” and also had a mortgagee clause reading as follows: “Loss or damage, if any, under this policy, shall be payable first to the New York Title and Mortgage Company, or owner of the mortgage guaranteed by the New York Title and Mortgage Company, covering the premises hereby insured, it being understood that upon request the New York Title and Mortgage Company will inform this Company of the name and address of the person to whom they may have assigned said mortgage, if any, as mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property. * * * ” On August 14, 1932, and while the above policies were in force, the mortgaged premises were damaged by fire, and the owner Weiner filed proofs of loss with the defendants-appellees and other insurance companies. As the amount of the loss was disputed, this action was brought against all the insurance companies, also the Title & Mortgage Company and the Morris Plan Company. The latter were joined because they were named as mortgagees in different policies involved in the fire. The plaintiff Weiner and the defendants Morris Plan Company, Employers Fire Insurance Company, and Harmonía Fire Insurance Company adjusted their differences and thus'were eliminated from the litigation. On April 24, 1933, the defendant Title & Mortgage Company filed an answer to Weiner’s complaint, in which it alleged that it held a senior participation interest in the mortgage covering the premises described in the policies of the defendants-appellees to the extent of $22,000 and that Fred Colin held a junior participation interest in the mortgage to the extent of $5,000. The attorney for the Title & Mortgage Company informed Colin that the latter should intervene as a defendant in the action to protect his interest, and thereafter he did intervene by consent of the parties. Later, without consulting Colin or notice to him, the defendants Sentinel Fire Insurance Company, Rhode Island Insurance -Company, Title & Mortgage Company, and Chase National Bank and William G. Barr, trustees under the will of Robert I. Barr, deceased, pursuant to the terms of the policies, entered into an agreement for the appraisal of the fire damage and the appraisers made an award fixing the loss at $8,832.63. The trustees Chase National Bank and William G. Barr filed a cross-petition in the action attacking the award as fraudulent and collusive, but it was sustained by the court, their cross-petition was dismissed, and no appeal was taken from the order of dismissal. Colin filed cross-actions against the defendants-appellees insurance companies demanding judgment for $5,000 against them for the loss alleged to have been payable to him by reason of his share in the mortgage. The issues raised by the cross-actions were tried before Judge Rippey and a jury. He held that Colin was bound by the appraisal, the validity of which had already been sustained by Judge Coxe, dismissed the cross-actions, and directed a verdict for the trustees against the insurance companies for the amount of the award. From this judgment Colin has appealed on the ground that he was not bound by the appraisal held without notice to him and should have been allowed to prove at the trial that the fire loss was greater than the amount awarded. It seems clear to us that the judgment of the court below was right. The participation agreement provided that the Title & Mortgage Company should have all the rights of any holder of the mortgage, including the right to foreclose and collect the income and that these rights were irrevocable. Colin acquired a junior interest derived from Brandenburg which was subject to the provisions of the participation agreement. Brandenburg only had the right to an accounting of sums received by the Title & Mortgage Company. By the insurance policies the loss was made payable to the latter as mortgagee. The mortgagee clause covered only the Title & Mortgage Company, or an assignee to whom it had assigned its interest under a guarantee of the same. Colin was not an assignee of that company, but of Brandenburg, and stood in his place and not in that of the Title & Mortgage Company. The contention that the mortgagee clauses were invalid because different from the standard form is without merit. The standard form of each policy, without the special clause in the annexed rider which made the loss payable to the Title & Mortgage Company, contains the following: “Other provisions relating to the interests and obligations of such mortgagee may be added hereto by agreement in writing.” Irrespective of this, the law of the state of New York does not forbid special agreements relating to the interests of the mortgagees. Hessian Hills Country Club v. Home Ins. Co., 262 N.Y. 189, 198, 200, 201, 186 N.E. 439. The appellant argues that, because the owner of the property had agreed in the mortgage to procure insurance for the benefit of the mortgagee, Colin in some way became entitled to share in the proceeds derived from the policies even if the amount was insufficient to satisfy the senior claim of the trustees under the will of Robert I. Barr. It is true that, if the mortgagor neglected to perform his covenant to provide insurance for the benefit of the mortgagees, Colin could impress a lien upon any insurance moneys belonging to Weiner. Wheeler v. Factors’ & T. Insurance Co., 101 U.S. 439, 442, 25 L.Ed. 1055. But such neglect would not create any right in Colin to whom the insurance was not made payable as against the insurance companies. In other words, the right would only be good against the mortgagor’s interest which has turned out to be nil. The words in the policies “as interest may appear” do not show a purpose to cover Colin’s lien. The loss was made payable to the Title & Mortgage Company, or to the owners of the share of the mortgage guaranteed by that company, and these owners were the trustees under the will of Robert I. Barr. The words “as interest may appear” meant as the interest between the Title & Mortgage Company and Weiner may appear, or, in the event of an assignment by the Title & Mortgage Company, as the interest may appear between its guaranteed assignee and Weiner. Only in case the loss exceeded $22,000 would either Weiner or Colin have any interest in the proceeds of the policy. The appellant, Cqlin, had no right to litigate the amount of the loss, for the reason that the participation agreement gave the Title & Mortgage Company full control over the mortgage and all the rights of any holder. Its power was coupled with an interest and was irrevocable. Terwilliger v. Ontario, C. & S. R. R. Co., 149 N.Y. 86, 92, 94, .43 N.E. 432. Under such circumstances, the New York courts have allowed one having a senior participation interest in a mortgage with powers similar to those given to the Title & Mortgage Company, even to satisfy a participation mortgage and take a new one without the consent of the holder of the junior interest, and have limited the latter to a lien on any amounts in excess of the interest of the senior owner. Lowenfeld v. Wimpie, 139 App.Div. 617, 124 N. Y.S. 178, affirmed 203 N.Y. 646, 97 N.E. 1108; Stafford v. New York Life Ins. Co., 235 App.Div. 538, 257 N.Y.S. 680, affirmed 260 N.Y. 696, 184 N.E. 150; Goodwin v. Gilsey, 210 App.Div. 31, 205 N.Y.S. 529. Under the participation agreement we are dealing with, the Title & Mortgage Company was given an irrevocable power to represent all persons interested in the mortgage subject only to accountability and any losses under the policies were payable only to it. Consequently it might invoke and become subject to the appraisal to fix the loss, and might in the absence of fraud, which was not claimed to have existed, bind all parties to the loss thus adjusted. Colin, therefore, had no independent right to litigate the amount of loss as fixed by the appraisers. Since the award was far less than $22,000, the senior interest in the mortgage, only that interest was entitled to receive anything from the insurance companies. Accordingly the court properly directed a verdict in favor of the trustees and dismissed the cross-actions interposed by Colin. Judgment affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_respondent	105	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. O’LEARY, DEPUTY COMMISSIONER, FOURTEENTH COMPENSATION DISTRICT, v. BROWN-PACIFIC-MAXON, INC. et al. No. 267. Argued December 7, 1950. Decided February 26, 1951. Morton Hollander argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp and Morton Liftin. Edward S. Franklin argued the cause and filed a brief for respondents. Mr. Justice Frankfurter delivered the opinion of the Court. In this case we are called upon to review an award of compensation under the Longshoremen’s and Harbor Workers’ Compensation Act. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. The award was made on a claim arising from the accidental death of an employee of Brown-Pacific-Maxon, Inc., a government contractor operating on the island of Guam. Brown-Pacific maintained for its employees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Yalak, the employee, spent the afternoon at the center, and was waiting for his employer’s bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the two men he was drowned. A claim was filed by his dependent mother, based on the Longshoremen’s Act and on an Act of August 16, 1941, extending the compensation provisions to certain employment in overseas possessions. 55 Stat. 622, 56 Stat. 1035, as amended, 42 U. S. C. § 1651. In due course of the statutory procedure, the Deputy Commissioner found as a “fact” that “at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment, and that his drowning and death arose out of and in the course of said employment . . . .” Accordingly, he awarded a death benefit of $9.38 per week. Brown-Pacific and its insurance carrier thereupon petitioned the District Court under § 21 of the Act to set aside the award. That court denied the petition on the ground that “there is substantial evidence ... to sustain the compensation order.” On appeal, the Court of Appeals for the Ninth Circuit reversed. It concluded that “The lethal currents were not a part of the recreational facilities supplied by the employer and the swimming in them for the rescue of the unknown man was not recreation. It was an act entirely disconnected from any use for which the recreational camp was provided and not in the course of Valak’s employment.” 182 F. 2d 772, 773. We granted certiorari, 340 U. S. 849, because the case brought into question judicial review of awards under the Longshoremen’s Act in light of the Administrative Procedure Act. The Longshoremen’s and Harbor Workers’ Act authorizes payment of compensation for “accidental injury or death arising out of and in the course of employment.” § 2 (2), 44 Stat. 1425, 33 U. S. C. § 902 (2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer’s service, undertaken in forbidden waters outside the employer’s premises. We think this is too restricted an interpretation of the Act. Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 481; Matter of Waters v. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17, 164 N. E. 726, 727; Puttkammer v. Industrial Comm’n, 371 Ill. 497, 21 N. E. 2d 575. This is not to say that there are not cases “where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” Matter of Waters v. Taylor Co., 218 N. Y. at 252, 112 N. E. at 728. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own. The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act as a question of “fact.” Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket term “fact.” Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The conclusion concerns a combination of happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as “questions of law.” Both sides conceded that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237, 5 U. S. C. § 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. Labor Board, ante, p. 474. It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. The District Court recognized this standard. When this Court determines that a Court of Appeals has applied an incorrect principle of law, wise judicial administration normally counsels remand of the cause to the Court of Appeals with instructions to reconsider the record. Compare Universal Camera Corp. v. Labor Board, supra. In this instance, however, we have a slim record and the relevant standard is not difficult to apply; and we think the litigation had better terminate now. Accordingly we have ourselves examined the record to assess the sufficiency of the evidence. We are satisfied that the record supports the Deputy Commissioner’s finding. The pertinent evidence was presented by the written statements of four persons and the testimony of one witness. It is, on the whole, consistent and credible. From it the Deputy Commissioner could rationally infer that Valak acted reasonably in attempting the rescue, and that his death may fairly be attributable to the risks of the employment. We do not mean that the evidence compelled this inference; we do not suggest that had the Deputy Commissioner decided against the claimant, a court would have been justified in disturbing his conclusion. We hold only that on this record the decision of the District Court that the award should not be set aside should be sustained. Reversed. Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_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 Jimmie Harold BUTLER, Appellant, v. UNITED STATES of America, Appellee. No. 10171. United States Court of Appeals Tenth Circuit. April 4, 1969. Hardy Summers, of Fite, Robinson & Summers, Muskogee, Okl., for appellant. William J. Settle, Asst. U. S. Atty. (Bruce Green, U. S. Atty., with him on the brief), for appellee. Before MURRAH, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, District Judge. PER CURIAM. Appellant was convicted of breaking into a United States Post Office with the intent to commit larceny in violation of 18 U.S.C. § 2112, and was sentenced to three years’ imprisonment. Appellant’s accomplices were also charged for the same offense, but the appellant upon his motion for severance was tried separately. The appellant’s defense was one of alibi, and six witnesses testified to seeing the appellant the night of the crime at another location and to the fact that he accompanied them to a strawberry festival the day following. At the trial the other two men charged for the same offense appeared as witnesses for the Government, and testified that the appellant participated in breaking into the post office. The appellant urges three grounds for reversal: (1) The court erred in refusing to allow appellant’s counsel to inquire as to former convictions of misdemeanors involving moral turpitude of a Government witness. (2) The court’s instruction regarding the manner in which accomplices’ testimony must be received by the jury was inadequate. (3) The evidence produced at trial by the Government was insufficient to sustain the appellant’s conviction. Under Rule 26 of the Rules of Criminal Procedure the cross-examination of witnesses to test their credibility and to determine their qualifications, in the absence of federal statutory law or procedural rules, is governed by the principles of the common law as they may be interpreted by the federal courts. See also Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617 ; Bostic v. United States, 68 App.D.C. 167, 94 F.2d 636 (D.C.Cir) ; Coulston v. United States, 51 F.2d 178 (10th Cir.). As was said in Coulston: “* * * [(Questions asked on cross-examination for the purposes of impeachment should be confined to acts or conduct which reflect upon his integrity or truthfulness, or so ‘pertain to his personal turpitude, such as to indicate such moral depravity or degeneracy on his part as would likely render him insensible to the obligations of an oath to speak the truth’ * * *. In criminal cases a witness may be asked, for purposes of impeachment, whether he has been convicted of a felony, infamous crime, petit larceny, or a crime involving moral turpitude, and on rebuttal the record of such conviction is admissible.” The trial court has some discretion in permitting questions on these subjects. See Williams v. United States, 3 F.2d 129, 41 A.L.R. 328. See also generally United States v. Palumbo, 401 F.2d 270 (2d Cir.), and Tafoya v. United States, 386 F.2d 537 (10th Cir.). During the course of the cross-examination, appellant’s counsel asked the Government’s witness, who was an accomplice, whether he had pled guilty or been convicted of any crimes other than that for which the appellant was then being tried. The Government objected on the ground that the question was not specific and that such a question should relate only to felony convictions. The court thereupon instructed appellant’s counsel to limit his questioning to convictions of felonies and not to inquire into misdemeanor convictions involving moral turpitude. On cross-examination, appellant’s counsel was able to elicit from the witness that he had pled guilty to being an accomplice in the crime for which the appellant was then on trial, and also that the witness had been convicted previously of a car theft in 1964 and again in 1961. The witness also indicated that there may have been other convictions he did not remember. Although the trial court could well have allowed appellant’s counsel to inquire into misdemeanor convictions involving moral turpitude within the cases above cited as extrinsic evidence, it was not reversible error for its refusal to do so. It is apparent that the witness’s credibility was impeached inasmuch as he admitted to having committed at least three felonies. As to the trial court’s discretion to refuse to permit further inquiry and the development of such extrinsic evidence, see Foster v. United States, 282 F.2d 222 (10th Cir.) ; Travis v. United States, 269 F.2d 928 (10th Cir.) ; United States v. Owens, 263 F.2d 720 (2d Cir.), and Beaty v. United States, 203 F.2d 652 (4th Cir.). Appellant also urges that the trial court’s instruction was inadequate as to the manner in which the jury should evaluate the testimony of the accomplices. The trial court instructed the jury on this point as follows: “The mere fact that a witness is an accomplice does not mean that he is an incompetent witness or that he can’t tell the truth, but it does mean that his testimony is to be weighed with great care and received with caution.” The court refused to give appellant’s tendered instruction: “You are instructed that the prosecution has used the testimony of two accomplices and that this testimony has not been corroborated by any other evidence. You are cautioned that testimony of accomplices must be carefully scrutinized, weighed with great care, and that too much reliance should not be placed upon it unless corroborated.” In federal courts the testimony of an accomplice need not be corroborated, but the court must instruct the jury as to the manner in which such testimony should be considered. An appropriate instruction is one as was given in the case at bar. See Todd v. United States, 345 F.2d 299 (10th Cir.) ; Johns v. United States, 227 F.2d 374 (10th Cir.) ; Cross v. United States, 392 F.2d 360 (8th Cir.) ; United States v. Kelly, 349 F.2d 720 at 767 (2d Cir.), and cases therein cited; Bishop v. United States, 100 U.S.App.D.C. 88, 243 F.2d 32 (D.C.Cir.). Thus the court’s instruction was adequate, and we find no error as to it. The testimony of the appellant’s accomplices was thus properly introduced and the jury was correctly instructed. This testimony, if believed by the jury, was sufficient for conviction, and the record demonstrates that the jury did believe it. 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_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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LORD BALTIMORE PRESS, INC., Respondent. No. 8416. United States Court of Appeals Fourth Circuit. Argued Jan. 5, 1962. Decided March 19, 1962. Glen M. Bendixsen, Attorney, National Labor Relations Board (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Attorney, National Labor Relations Board, on the brief), for petitioner. Earle K. Shawe, Baltimore, Md. (Sidney J. Barban, William J. Rosenthal, and Larry M. Wolf, Baltimore, Md., on the brief), for respondent. Before SOPER, BRYAN and BELL, Circuit Judges. ALBERT V. BRYAN, Circuit Judge. The order of the National Labor Relations Board requiring The Lord Baltimore Press to bargain with Amalgamated Lithographers of America is here resisted, fundamentally, upon the assertion that the election favoring the union as the collective bargaining representative of Baltimore’s employees was unfairly conducted. The immediate challenge is to the Board’s refusal to accord Baltimore a hearing on its exceptions to the election. We stay the order’s enforcement because of the Board’s denial of the hearing. The election’s validity is thus made a premature question, to await the outcome of the further proceedings we order. On May 8, 1959 Baltimore consented to an election, under the supervision of the Board’s Regional Director, to ascertain whether a certain unit of its employees desired Amalgamated as its bargaining representative. The election was held June 11, 1959 and the union won. Next day Baltimore filed objections to the election, at the same time asking that it be set aside. Presently pertinent, the objections stated that: “(1) During the period immediately prior to the election Employer supervisory personnel engaged in. organizing and other activities on behalf of the Union, by which employees were induced, coerced and caused to favor the Union, sign cards for the Union and vote for the Union, all of which was unknown to the Employer until after the election.” The supervisory personnel to which Baltimore had reference was one Crestón E. Ford, the foreman of its lithographic department. Following an ex parte investigation, including in camera interviews with the witnesses of whom it was apprised by the employer, the Regional Director concluded that the objections should be overruled and Amalgamated certified as the exclusive representative of ‘the Baltimore employees. To this report Baltimore filed exceptions. The Board denied them without a hearing, thinking a hearing unwarranted and unsought, and accordingly certified Amalgamated. Thereafter, Baltimore declined to bargain with the union, contending that its selection as the collective agent was invalid. At the union’s instance the Board issued a complaint accusing Baltimore of an unfair labor practice as defined in § 8(a) (5) and (1) of the Act, 29 U.S. C.A. § 158(a) (5), (1). In the hearing on this complaint before the Examiner, Baltimore proffered oral and documentary evidence purporting to delineate the activities of Ford. Quoting from the offer made before the Examiner, the evidence it tendered would show that “He [Ford] said that he knew the company had done and would do some dirty tricks to us and told them to look at what they have done to me. Further, that Mr. Ford told employees under his supervision ‘you fellows better sign a card and send them in’ under circumstances in which it was perfectly clear that he was talking about union cards which were the only cards being circulated in the plant at the time. “Further, that Mr. Ford told witnesses under his supervision that the plant superintendent was just a hatchet man and the men had better get together and get the union in. “Further, that many times and immediately before the election Mr. Ford stated to employees under his supervision that the plant wasn’t a family affair any longer, that the men didn’t any longer have the security they had before and that the fellows ought to have a union to protect themselves.” This evidence the Examiner declined to hear. He was of the opinion that as the Board had already decided the dispute in the representation proceeding, the question was no longer open. Whereupon on his recommendation the Board entered the order it now seeks to enforce. With the respondent Baltimore, we think it should have been heard on its exceptions in the election proceeding. Indwelling, of course, was a request for a hearing upon them. The Board’s Buies and Regulations, Section 102.69, allowed such a hearing. But we need not now enlarge on the point because, in the absence of a hearing at that stage, the employer should certainly have been accorded a hearing thereon in the complaint proceedings, and we discuss the point under that head. The Examiner and the Board clearly erred in rejecting the testimony when last offered. Ford’s activities — if true — could not be lightly brushed off. The Board has repeatedly declared, and again recognizes in its brief here, that advocacy of the union by a supervisor-employee, unknown to the employer, is cause for annulment of the election. Shovel Supply Co., 118 N.L.R.B. 315 (1957); Parkchester Machine Corp., 72 N.L.R.B. 1410 (1947); Robbins Tire & Rubber Co., 72 N.L.R.B. 157 (1947). Awareness by Baltimore of Ford’s aiding of the union is not indicated in the evidence. Entreaties and importunities of the kind here suggested were not permissible and protected — “privileged”— under 8(c) of the Act, 29 U.S.C. 158(c) as expressing only “ * * * views, argument, or opinion * * * ”. Nor would they necessarily be neutralized by the alleged oral and written attempts of Baltimore to persuade the employees against unionization. It must be remembered that Ford denied any untoward conduct on his part. Whatever the truth the employer should have had an opportunity to present its side. Baltimore's strictures on the supervisor’s electioneering, given increased countenance by a show of proof, raised “substantial and material factual issues”. Rules and Regulations, supra, Sec. 102.69(d). Actually, the report of the Regional Director in the election proceeding itself reflects evidence of partisan remarks by Ford, particularly “that he [Ford] knew that the Company had done some dirty tricks to us, ‘look what they done to me’ ” and “the plant superintendent was just a hatchet man”. Such words would come with particular force from Ford. He had once been a superintendent and only recently demoted. His admonitions were directed to subordinates and he talked from 37 years of experience with Baltimore. Just then the company was in a critical period, passing from a family proprietorship of 80 years to a new ownership, a transition already creative of uneasiness among the employees. Though away on vacation from May 30 until June 9 (two days before the election), it is not clear that Ford’s absence erased his earlier campaigning. The right of the employer to the audience of the Board in these circumstances was enjoined upon the Board in N. L. R. B. v. Poinsett Lumber & Mfg. Co., 221 F.2d 121 (4 Cir. 1955) by this court with precise language, as follows: “If a hearing had been held and the evidence had been taken and passed upon by the Board in the representation proceeding, the Board would not be required to go into the matter again in the absence of special circumstances showing that it was in the interest of justice that this be done; but the evidence has not been taken nor a hearing accorded the company at any time even though substantial questions affecting the validity of the election had unquestionably been raised by its exceptions. We think that it is entitled to a hearing at some stage of the proceedings so that it may produce the evidence upon which it relies for consideration by the Board and for consideration by this court in proceedings to enforce or set aside the Board’s order. * * * ” Similar holdings prevail elsewhere. N. L. R. B. v. Tampa Crown Distributors Inc., 272 F.2d 470 (5 Cir. 1959); N. L. R. B. v. Dallas City Packing Co., 230 F.2d 708 (5 Cir. 1956); N. L. R. B. v. West Texas Utilities Co., 214 F.2d 732 (5 Cir. 1954). Certification of the election did not irrevocably seal it against review. Altogether interlocutory — just a step in the enforcement proceeding — it was as a matter of law subject to vacation or revision at any time before the trial of the unfair labor practice complaint became final. Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146,162, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). The order of the Board will be set aside with a direction to hear Baltimore's evidence and arguments in objection to the election. Order set aside and remanded. . National Labor Relations Act, § 10(c), 29 U.S.C.A. § 160(c). . Id., § 10(e), 29 U.S.C.A. § 160(e). . Id., § 9(e) (1) and (2), 29 U.S.C.A. § 159(c) (1) and (2). Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_circuit	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The SCAM INSTRUMENT CORPORATION, Respondent. No. 16599. United States Court of Appeals Seventh Circuit. May 15, 1968. Rehearing Denied June 26, 1968. Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Burton L. Raimi, Attorneys, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, for petitioner. George L. Plumb, Chicago, Ill., Peer Pedersen, Chicago, Ill., for respondent; Pedersen & Houpt, Chicago, Ill., of counsel. Before KNOCH, Senior Circuit Judge, and CASTLE and KILEY, Circuit Judges. CASTLE, Circuit Judge. This case is before the Court upon the petition of the National Labor Relations Board to enforce an order of the Board issued on May 8, 1967, against the respondent, The Scam Instrument Corporation. The Board’s decision and order are reported at 163 NLRB No. 39. The Board found and concluded that Scam violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, by unilaterally modifying the benefit payment schedule of a group health insurance policy which Scam was required to carry for its employees under its collective bargaining agreement with the Union representing the production and maintenance employees in Seam’s Skokie, Illinois plant. The Board further concluded that the change in insurance benefits so effected constituted a modification of the collective bargaining agreement in violation of the requirements of Section 8(d) of the Act. The Board’s order requires Seam to cease and desist from unilaterally modifying the existing terms and conditions of employment and from unilaterally modifying the collective bargaining agreement without complying with the provisions of Section 8(d). Affirmatively, the order requires Scam to remove, retroactively, the rider modifying the insurance benefits, to make its employees whole for any loss suffered, and to post designated notices. The record discloses that the collective bargaining agreement between Scam and the Union covering the two year period ending September 1, 1966, contained a provision obligating Scam to maintain during such contract period certain insurance coverage for the employees represented by the Union. The particular coverages and the benefits payable were set forth in an attached schedule. The employee coverage was furnished at Scam’s expense, but the monthly cost to an employee for medical and hospital services coverage for dependents was $9.-82 for an employee with one family member, and $15.78 for an employee with two or more family members. Except in the case of the “major medical” coverage neither the bargaining agreement nor the insurance policy contained a “nondupli-cating” provision allowing the benefits to be reduced by amounts the employee received from coinsurance obtained from other sources. Neither the agreement nor the policy reserved to Scam or its insurance carrier a right to modify the insurance coverage or benefits during the contract period. In February 1965, without notification to or consultation with the Union, Seam and its insurance carrier agreed to the addition of a rider to the insurance policy. The rider issued in late February. It added a “nonduplieating” provision to the policy applicable to the medical and hospital services benefits. The rider provided for a reduction in the scheduled benefit payment in event a benefit was payable (or the item of hospital or medical service was furnished) because of like coverage of the employee or his dependent under some other group insurance or group benefit system involving participation by an employer in the form of contributions or payroll deductions. It provided like reduction in the scheduled benefit where the other benefit was due' to coverage afforded by any statute. The Union first became aware of the policy change in early May 1965, when a Scam employee reported receiving a reduced insurance payment, and upon investigation a Union representative discovered that the rider had been added to the policy. Scam’s personnel manager when questioned about the change promised to investigate and assured that Scam would make restitution if shortages existed and that it was unnecessary to file a grievance. On May 18, Scam asked its insurance carrier to remove the rider retroactively from the policy. The carrier complied. This action, however, was not conveyed to the Union at the time, and on June 3, the rider was reinstated at Scam’s request. On June 30, pending differences concerning insurance benefits payable to two of Scam’s employees remained unresolved and a grievance was filed under the grievance and arbitration provision of the contract. The grievance procedures culminated in the appointment of an arbitrator. The hearing before the arbitrator was postponed at the joint request of the parties pending disposition of the Board proceeding initiated by the July 14, 1965, charge filed by the Union. Substantial evidence, on the record considered as a whole, establishes that the effect of the rider was to reduce substantially, in some instances, the insurance benefits otherwise receivable by employees where other insurance coverage existed in addition to that provided by Scam. In support of its position in opposition to enforcement of the Board’s order Scam states that the reason for the addition of the rider arose because of the increasing number of employed women who are covered by union negotiated insurance while at the same time being covered as a dependent under their husbands’ union negotiated insurance and that an unintended dollar profit results from this double coverage which can in no way be considered as a bargained for employee benefit since it affects only a small number of employees and its payment does not flow from any of the traditional concerns that are normally an express subject of discussion between an employer and its employees. And on this basis, and the lack of disclosure by the record of any history of bargaining between the Union and Scam expressly directed to the factor of whether the employee insurance benefits should be either duplicating or nonduplicating, Scam argues that this particular phase of the employee insurance program does not fall within the scope of “other terms or conditions of employment” as that language has been construed and applied in cases such as Inland Steel Co. v. N. L. R. B., 7 Cir., 170 F.2d 247, 250-251, 12 A.L.R.2d 240 and W. W. Cross & Co. v. N. L. R. B. 1 Cir., 174 F.2d 875, 878. Scam contends that “there is a vast difference between an employer’s duty to bargain concerning the existence or the extent of benefits to be provided by an insurance plan and an employer’s duty to bargain concerning the dollar profit that may be received by an employee over and above the actual cost of the medical treatment received by the employee”. But here the issue presented does not concern mandatory duty to bargain. In its collective bargaining agreement with the Union Scam had agreed to the employee insurance program incorporating the specific benefit payments set forth in the schedule. The “basic” benefit payments so scheduled were not made subject to a qualification that duplicating insur-anee coverage would serve to effect a reduction in the amounts otherwise allowable. And once the maintenance of that insurance program and the specific benefits payable thereunder became an obligation of Scam under its collective bargaining agreement that program and those benefits constituted a part of the terms and conditions of employment for the contract period involved. Whatever merit or intrinsic equity a “nonduplicating” feature may possess, insofar as insurance programs maintained by different employers are concerned, is beside the point. The benefits here payable were frozen as a term or condition of employment for the contract period involved absent mutual consent of the contracting parties to their alteration or qualification, or compliance with the provisions of Section 8(d). They were not subject to the unilateral reduction Scam effected, without notice to or consultation with the Union, by means of the rider it requested of its insurance carrier. The reductions so effected were not without substantial impact although they affected only those of the employees who were the beneficiaries of additional employer-participating coverage and who happened to incur medical or hospital expenses covered by both of the insurance programs. We are of the opinion that the Board was correct in concluding that the unilateral change in benefits effected by Scam constituted an unfair labor practice violative of Section 8(a) (5) and (1) and of Section 8(d) of the Act. And, the Board’s power to entertain the charges and to afford a remedy for the unfair labor practice found to exist was not precluded by the availability or the invocation of the contract’s grievance and arbitration provisions. Carey v. Westinghouse, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320; N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495. Accordingly, it is ordered that the order of the Board be enforced. Enforcement ordered. . Local 1031, International Brotherhood of Electrical Workers, AFL-CIO. 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_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". GENERAL TIRE CO. OF MINNEAPOLIS v. STANDARD ACC. INS. CO. No. 9576. Circuit Court of Appeals, Eighth Circuit. May 6, 1933. Rehearing Denied June 12, 1933. Thomas Gallagher, of Minneapolis, Minn., for appellant. George Hoke, of Minneapolis, Minn. (George D. MeClintoek and Cobb, Hoke, Benson, Krause & Faegre, all of Minneapolis, Minn., on the brief), for appellee. Before STONE, .VAN VALKEN-BURGH, and BOOTH, Circuit Judges. ° VAN VALKENBURGH, Circuit Judge. August 10, 1930, appellant was the owner of four Ford trucks, in the city of Minneapolis, Minn., which were insured by ap-pellee against damages to persons and property. The classification made and premiums charged are thus stated in the policy: Paragraph VIII of the policy provided that the appellee company should not be lia-Me for accidents occurring wMle sueli automobiles aré “used for any purpose other than specified.” Truck No. 1,269,112, scheduled at the lower premium rate to be used only for commercial purposes, excluding service ear use and towing, was mounted with a large ninety-gallon air tank on the box in the back of the cab, and, by lettering, was designated as a “fleet tender.” Its principal use was for “checking air and inflating tires on various fleet accounts.” “We (appellant) gave service to the fleets of trucks equipped with our tires.” Appellant at this time had what may reasonably be termed a service arrangement with the Franklin Creamery Company. As stated by the witness Ludwig, service manager of appellant, “we sold the Franklin Creamery tires and did their repair work.' We had some spare tires at our place for some of the Franklin Creamery trucks, and we went out and changed if there happened to be a flat tire.” As stated by the witness Nelson, garage foreman for the Franklin Company, “the General Tire Company had charge of the repairing end of it for the entire fleet.” ' August 10, 1930, the witness Reagan, employee of the appellant, was “taking care of sales and catching service calls that came through. On that day (Sunday) about lunch time I received a long distance call from one of the truck drivers of the Franklin Creamery Company at Elk River, Minnesota. He ordered a new tire and tube, and requested that they be mounted on his spare wheel that we had there in the shop, and then brought out to Elk River to his truck which was evidently on its route there. * * * “I took this order back to Johnson, the man in the service department, an employee of plaintiff, who was working that day, showed it to him and told him about the delivery he was to make.” Johnson selected the truck in question because it was “gassed up and ready to go.” He first looked at the others and found they had no gasoline and were not ready. It is apparent from his testimony that this was regarded as a service trip and that he would have taken one of the other ears, if it had been available, for that reason. On his way back from Elk River, Johnson had an accident, involving two other ears, and resulting in personal injuries and property damage. One ear is described as the Gallagher car with five occupants, three named Gallagher, one named Theds, and one Bergin. In the other car were Mrs. Olson, and her'son and daughter. Claims for damages were made by the occupants of both cars. This accident was duly reported to the insurance company August 11, 1930. On the same day Clarence A. Stark, an adjuster for the company, was directed by the head of the claim department to “hustle out and settle the Gallagher claims because they were threatening suit.” On the night of August 14, 1930, Stark made settlements with all the people in the Gallagher ear, issuing checks therefor. At this time he knew the use to which the truck was put, but did not actually know of the restriction in the policy. He learned this several days later and then demanded from appellant payment to cover the cheeks he had issued in these settlements, stating that the truck in question was not covered by the policy, and that the insurance company would assume no responsibility in the premises. Appellant finally reimbursed the insurance company for these payments and was furnished the Gallagher releases taken by Stark. Meantime, the Ol-sons had filed suits against appellant in the sum of $20,000, and appellant was compelled to defend these suits because of the refusal of appellee to do so. One of the Gallaghers testified in these actions that her claim, arising from the same accident, had been settled by appellant. Substantial judgments were returned against and paid by appellant. To recover for the. damages thus sustained appellant brought suit against appellee in the state court, which action was removed to .the District Court for the District of Minnesota, because of diversity of citizenship. At the conclusion of the evidence both parties moved for directed verdicts. The following colloquy then took place: “The Court: Well, gentlemen, you both have asked for directed verdicts and that leaves the matter to the disposition of the Court. I will take the matter, under advisement and submit a decision. Ladies and gentlemen of the jury, the ease has now reached a position where the testimony is all closed and both parties contend that they are entitled to a directed verdict as a matter of law, and that simply leaves the matter for the Court to decide owing to the fact that the parties both waive their right to a jury decision, and the Court will take this matter under advisement and make suitable findings of fact and conclusions of law. “Mr. Gallagher: (Counsel for plaintiff-appellant) I perhaps did not understand the correct practice in this court. I had in mind that if my motion were denied that I would still have the right to have the questions of fact submitted to the jury. I wish to withdraw the motion and have all the facts in issue submitted to the jury. “The Court: No, I think I will leave the motions just as they are. I will excuse the jury from any further consideration of this ease and they can report to Judge Moly-neaux on Monday A. M. at 10 o’clock. “Mr. Gallagher: Exception. (Jury leaves the courtroom.) “The Court: Ordinarily if it appeared that counsel had inadvertently deprived himself of the right to have his ease go to the jury by making a motion for a directed verdict, I would be inclined to relieve him from the consequences of such inadvertence. But in this ease it is so clear to me that the vital controlling issues are practically questions of law, that. I feel that this is a matter for the Court and that the jury should be excused. “Mr. Gallagher: Exception.” The court found the issues for appellee. From the resulting judgment this appeal is taken. The first contention is that the court erred in refusing to allow plaintiff-appellant to withdraw its motion for a directed verdict. The general rule in federal jurisdictions is that, where each party to an action requests a directed verdict in his favor, and does nothing more, the parties will be held to have waived a trial by jury and to have constituted the court a trier of both law and fact. Hover & Co. v. Denver & R. G. W. R. Co. (C. C. A. 8) 17 F.(2d) 881; Bank v. Fidelity & Casualty Co. (C. C. A. 8) 62 F.(2d) 1040. But this rule is subject to modification and exception where the facts warrant. It is well settled that where the request for directed verdict is coupled with a reserved right to submit further requests for instructions, if that for a directed verdict is refused, no waiver of trial by jury results. Hover & Co. v. Denver & R. G. W. R. Co., supra; Bank v. Fidelity & Casualty Co., supra; Empire State Cattle Co. v. A. T. & S. F. Ry. Co., 210 U. S. 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Sampliner v. Motion Picture Patents Co., 254 U. S. 233, 41 S. Ct. 79, 65 L. Ed. 240. The question, then, is whether the request to withdraw the motion for a directed verdict was timely. We think it was. No doubt the proper and usual practice is to couple the request for a directed verdict with a reservation, in some form, contingent upon the overruling of that motion; but timely statements by counsel “made it sufficiently plain that, while he sought an instructed verdict, he also requested to go to the jury if the court held a contrary view concerning the evidence.” In this respect the case does not differ materially from Sampliner v. Motion Picture Patents Co., supra. If the court had already ruled upon the motion, or had indicated what its decision would be, or if, before either of such actions had been taken, the jury had been discharged, and had mingled with the remainder of the panel, the withdrawal would probably have come too late. But here no action had been taken which could alter the situation of the parties. The court had neither made nor indicated any ruling. The jury was still in the box. We think under such circumstances appellant was entitled to withdraw his motion. The trial court, as its language indicates, was evidently of the same opinion; but conceived that the “vital controlling issues” were “practically questions of law,” and refused the request to withdraw for that reason. However, although taking the case from the jury was erroneous, nevertheless “the verdict will be sustained if the evidence was of such a conclusive character that it would have been the duty of the court to set aside the verdict had it been for the other party.” Empire State Cattle Co. v. A. T. & S. F. Ry. Co., supra. Our first inquiry then is whether the truck in question was covered by the policy of insurance when the accident occurred. From the facts in evidence, as hereinabove stated, it is our opinion that the truck, on this occasion, at least, was being used for a purpose other than that specified in its policy classification, and, for that reason, was not covered .by the policy. This view is further supported by the action of appellant while its claim against appellee was pending. A clause in the policy provided that if, during the term of the policy, the assured changes the operation of an automobile it may be placed upon a pro rata premium basis for the balance of the policy period. Accordingly, on August 26, 1930, appellant wrote appellee as follows : “Standard Accident Ins. Co. of Detroit, Mich, c/o Fred L. Gray Company 332 Security Building Minneapolis, Minnesota. “Gentlemen: As of August, 9th, 1930, we Ijave placed a Ford Truck, # 1269112, Model A, 1929, in use as a service car. “We have given you this notice thereof in accordance with the terms of- endorsement ■#109583 on your policy #JC1287545. Kindly advise us as to additional premium thereon, and we will immediately forward you cheek to cover.” Appellee declined to antedate this indorsement to August 9th “after an accident has occurred,” to wit, on August 10th. We think this letter was a damaging admission on the part of the tire company that the truck in question was being used in service when the accident occurred. However, we think appellee is estopped to deny its liability because of its action in taking exclusive charge of the defense of these claims for personal injuries and property damages with appellant’s consent. Employers’ Liability Assurance Corp. v. Chicago & Big Muddy Coal & Coke Co. (C. C. A. 7) 141 F. 962; Empire State Surety Co. v. Pacific Nat. Lumber Co. (C. C. A. 9) 200 F. 224. It is true that this, ordinarily, must be done with knowledge of the defect, if any, in the claim of coverage; and, if the insurer undertakes such control with a timely reservation that it will disclaim liability if certain facts, not then definitely known, are ultimately established, it may, upon timely notice, escape the charge of waiver and estoppel. Meyers v. Continental Casualty Co. (C. C. A. 8) 12 F.(2d) 52. But this case does not present such a situation. Adjuster Stark, acting un der explicit instructions from his superiors, proceeded to take exclusive charge of the claims for damages, and settled those presented by occupants of the Gallagher ear. His explanation is that at that time he knew that the truck in question was being used as a. service ear when the accident occurred, but did not know that the policy restricted its use to commercial purposes only. But under the circumstances of the case he is charged with knowledge of that restriction. Natural- ■ ly the company and its agents, in assuming to act, must know the provisions of the policies which govern the transaction, especially if those policies are reasonably accessible. This policy was readily obtainable, and was subsequently obtained, from the underwriting department of appellee, just across the hall from the claim department. “If the company ought to have known of the facts, or, with proper attention to its own business, would have been apprised of them, it has no right to set up its ignorance as an excuse.” Knights of Pythias v. Kalinski, 163 U. S. 289, 298, 16 S. Ct. 1047, 1051, 41 L. Ed. 163. "Where, as here, the insurer, without reservation and'with knowledge actual or presumed, assumes exclusive control of the defense of claims against the insured, it cannot thereafter withdraw and deny liability under the policy. And in such case the insured need not show that it was prejudiced by such conduct. “Where the insurer with actual or constructive knowledge of the fact recognizes a liability as covered by the policy and proceeds to act thereunder according to its terms, as by assuming -control of the defense of the action against insured, without notifying him that it would claim its exemptions under the policy, it will be conclusively presumed in an action on the policy that insured was prejudiced by such conduct and need not show such fact in order to estop the company from claiming that the liability was not within the terms of the policy.” Corpus Juris, Vol. 36, par. 125, p. 1127. Furthermore, it sufficiently appears that appellant sustained injury because of the action taken by the adjuster. His settlement Vith the occupants of the Gallagher ear was viewed as an admission of liability, and in the Olson suit, which appellant was compelled to defend because of the refusal of ap-pellee so to do, evidence of the Gallagher settlement was received and was obviously prejudicial. The judgment below is reversed and the case remanded for further proceedings not inconsistent with this opinion. 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_respond1_3_3	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. MILO COMMUNITY HOSPITAL, etc., Plaintiff-Appellant, v. Caspar W. WEINBERGER et al., Defendants-Appellees. No. 75-1205. United States Court of Appeals, First Circuit. Argued Sept. 10, 1975. Decided Nov. 14, 1975. Joseph J. Bichrest, Greenville, Me., for appellant. Lawrence E. Burstein, Asst. Regional Atty., Region I, United States Dept, of Health, Education and Welfare of Boston Mass., with whom Peter Mills, U. S. Atty., Portland, Me., was on brief, for appellee. Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and THOMSEN', Senior District Judge. Of the District of Maryland, sitting by designation. COFFIN, Chief Judge. The Milo Community Hospital, a sixteen bed private non-profit hospital in Milo, Maine, brought suit in the district court to enjoin defendant Secretary of Health, Education, and Welfare and other relevant officials (HEW) from terminating its federally assisted status as a “provider of services” under Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (the Medicare Act). The hospital attacked HEW s decision in two counts of its complaint: in Count One it alleged that HEW had not prepared and issued an Environmental Impact Statement in compliance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA); in Count Two it charged that the termination was arbitrary, capricious, and a denial of equal protection. Jurisdictional grounds asserted were 42 U.S.C. § 4332(2)(C); 5 U.S.C. §§ 702 and 706; and 28 U.S.C. §§ 1331, 1343, and 1361. Defendants denied jurisdiction under both counts and generally admitted the factual allegations. They further answered, as to Count One, that the decertification of a provider under the Medicare Act is controlled by statute and regulation and is not a “major Federal action significantly affecting the quality of the human environment” under NEPA; and, as to Count Two, that the hospital had failed to exhaust its administrative remedies. From a judgment in favor of defendants, entered after hearing by the court, the hospital appeals. The relevant factual background is the following. Appellant has been authorized to furnish federally compensable Medicare services as a “provider of services”, as the term is defined in 42 U.S.C. § 1395X. In October, 1973, the Bureau of Health Insurance of the Social Security Administration notified the hospital of a number of respects in which its facilities failed to comply with the 1967 edition of the National Fire Protection Association’s Life Safety Code, the relevant set of standards made applicable by 20 C.F.R. 405.1022(b). After a year of discussion, rectification of some deficiencies, and extensions of time for the hospital to submit an acceptable plan of correction, the Bureau, in November, 1974, issued its formal letter, notifying the hospital that, as of December 13, 1974, its Medicare provider agreement would be terminated. The hospital was advised that, if the Medicare program requirements were met in the future, it could request re-establishment of its eligibility to participate as a provider. It was further advised of its rights to request and have a hearing before an administrative law judge within six months. While the hospital sought, and was denied, reconsideration, it did not seek administrative review of the Bureau’s action, but brought this suit. During the same period, the Bureau had advised two other small hospitals in nearby towns of their failure to comply with the Life Safety Code. One, in Dexter, was terminated as a provider in December, 1974. The other, in Dover-Fox-croft, was allowed, subject to correcting certain deficiencies, to continue as a provider, pending construction of a new regional hospital in the same town — a project in which Dover-Foxcroft and several other communities had voted to participate and for which a firm time schedule had been determined. The town of Milo voted twice not to join the new Hospital Administrative District, the second occasion of such vote being in December, 1974, at which time Milo also voted to appropriate $390,000 for new hospital facilities and to raise $150,000 by a fund drive. As of March 5, 1975, the date of hearing before the district court, no firm plan for construction and financing had been submitted. The district court found that termination of the hospital’s provider status would force it to close, causing Milo patients to travel 13 miles to Dover-Fox-croft or 32 miles to Bangor. In addition to the deprivation of local hospital facilities, the town would lose some $170,000 in annual hospital payroll and $30,000 in annual local purchases. Established by stipulation were the facts that HEW had not filed an Environmental Impact Statement (EIS) and, indeed, that its position has always been that 42 U.S.C. § 4332(2)(C) of the National Environmental Protection Act was not applicable to certification and decertification decisions under the Medicare Act. The district court held that it had jurisdiction, that — as to Count One— HEW was not required to file an EIS before terminating the hospital’s provider status, and — as to Count Two — that the hospital was not entitled to judicial review since administrative remedies had not been exhausted. The court added, although unnecessary to its decision, that it found no merit in the claims of arbitrariness and denial of equal protection. Since the decision of the district court, the Supreme Court has spoken most relevantly to the jurisdictional issues in the present case. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522, 1975, the widow of a deceased wage earner was denied certain insurance benefits because she had been the decedent’s wife less than the nine months required by 42 U.S.C. § 416(C) for entitlement to benefits. After seeking and being refused reconsideration, she brought suit in district court, challenging the constitutionality of the statute. The Court held that the first two sentences of 42 U.S.C. § 405(h) “prevent review of decisions of the Secretary save as provided in the Act, which provision is made in § 405(g).” 422 U.S. at 757, 95 S.Ct. at 2463. In this case it would seem irrelevant to analyze each of the heads of jurisdiction alleged by appellant. Some, such as 28 U.S.C. § 1331, are clearly not available. But whether other bases of jurisdiction are present or not, § 405(g) is both a source of jurisdiction and a limitation on its exercise. Section 405(g) sets forth the procedure to be followed in obtaining judicial review of the Secretary’s decision. It commences with the words, “Any individual, after any final decision of the Secretary made after a hearing . . . may obtain a review of such decision by a civil action . . . .” The Supreme Court in Salfi variously characterized this requirement as “central to the requisite grant of subject matter jurisdiction”, id. at 764, 95 S.Ct. at 2466, “a statutorily specified jurisdictional prerequisite”, id at 766, 95 S.Ct. at 2467, “something more than simply a codification of the judicially developed doctrine of exhaustion”, loc. cit., but “not precisely analogous to the more classical jurisdictional requirements . ■. . as [28 U.S.C.] 1331 and 1332.” Loc. cit. It is not made inapplicable by reason of a constitutional challenge, beyond the power of the Secretary to take remedial action. The requirement, however, is not jurisdictional in an inflexible sense, as Mr. Justice Brennan noted in dissent, id. at 799, 95 S.Ct. 2457, since the Secretary may “determin[e] in particular cases that full exhaustion of internal review procedures is not necessary for a decision to be ‘final’ within the language of § 405(g).” Id. at 767, 95 S.Ct. at 2467. In Salfi, despite a defense of failure to exhaust contained in a motion submitted to the district court, the Court noted that the Secretary was not raising on appeal any challenge to the sufficiency of the allegations of exhaustion in the complaint and interpreted that action to be a “determination by him that for the purposes of this litigation the reconsideration determination is ‘final’.” Id. at 767, 95 S.Ct. at 2468. In the case at bar there is no question but that HEW has consistently raised and argued non-exhaustion as to Count Two both in the district court and before us. The district court was clearly correct in its holding that appellant could not claim judicial review of its due process and equal protection claims. HEW’s stance as to Count One is much less forthright. Although the answer began with a blanket denial of jurisdiction, Count One flatly asserted, by way of a detailed additional answer, the inapplicability of NEPA. This approach was in marked contrast to the answer to Count Two, where a detailed additional answer affirmatively raised the issue of non-exhaustion. In addition, the case was tried to the district court on the theory that it could reach the merits on Count One although not on Count Two. And the court noted the stipulation that it had always been HEW’s position that decertification decisions were not subject to NEPA’s requirements. It was not until the appeal, subsequent to the decision in Salfi, that HEW argued that § 405(g) bars judicial review of all issues in the case. Understandable though HEW’s change of mind might be, having the benefit of the Court’s strictures as to the sweep of § 405(g), we cannot avoid the conclusion that, for purposes of the trial below, the Secretary through his counsel, had made a determination that his refusal to reconsider his decision that no Environmental Impact Statement need accompany a decertification action was “final”. We arrive at this conclusion reluctantly. We would prefer not to decide the NEPA issue on the merits but defer decision until a case appears where full administrative review has been had. The deliberations of an administrative law judge and an Appeals Council could not fail to provide both a deeper perspective and more thorough consideration than are permitted a court, which can be concerned only with legal error. Appellant, however, deliberately refused to follow the course of administrative review and, HEW having effectively determined in this case that exhaustion would not be necessary, we must decide the merits. We decide on as narrow a ground as possible. We need not decide whether an Environmental Impact Statement will ever be required before a decertification decision is made. We do not exclude the possibility that such a decision might have a sufficient environmental impact to constitute a major federal action significantly affecting the quality of the environment, and we decline to consider whether environmental considerations would be irrelevant to all decertification decisions. Here we decide only that the Secretary did not err in failing to prepare an Environmental Impact Statement because, under the circumstances of this case, consideration of the factors that the appellant has characterized as “environmental considerations” could not have changed the Secretary’s decision. Appellant’s contention is that the economic consequences of closing the hospital and the resulting inconvenience and increased use of automobile transportation by Milo residents are environmental consequences that the Secretary had to weigh, via an impact statement, in reaching his decision to decertify the hospital. Accepting arguendo appellant’s characterization of these factors as “environmental considerations”, we hold that no impact statement was required because under the terms of the Medicare Act these considerations are irrelevant to a decertification determination. When the Secretary finds serious noncompliance with fire prevention requirements of the Life Safety Code, he is under a statutory duty to terminate the Provider Agreement. The kind of dislocation that-Milo Hospital alleges it will experience will accompany most termination decisions. We are certain that Congress did not intend the Secretary to have the discretion to give any weight to such consequences in arriving at a termination decision. Not only, therefore, were such factors irrelevant, but they would also be impermissible factors for the Secretary to consider in making this decision. Under these circumstances we hold that no impact statement was required. Therefore, whether or not the decertification action in this case could be said to be “major”, and whether or not the prospective social and economic impact could be said to fall within the statutory term, “quality of the human environment”, see Maryland-National Capital Park and Planning Commission v. U. S. Postal Service, 159 U.S.App.D.C. 158, 487 F.2d 1029 (1973), and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), we hold that the decertification of a small hospital as a “provider” or services under the Medicare Act for continued non-compliance with significant fire protection provisions of the Life Safety Code is a decision which should be governed solely by that Act. Affirmed. . A provider “hospital” under this statute must be an institution which meets, in addition to requirements relating to the nature and scope of professional services, “such other requirements as the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” 42 U.S.C. § 1395x(e)(9). . While some items noticed were relatively minor, others were more basic and pervasive, such as the unprotected wood frame construction, lack of fire-stoppers in concealed spaces, lack of non-combustible interior walls and partitions, and inadequate means of egress. . Subpart O of Part 405 of the regulations governing federal health insurance for the aged and disabled, §§ 405.1501-405.1595, spell out in elaborate detail the procedures available to a provider of services wishing to contest an initial determination that it no longer qualifies. The various steps include a request for reconsideration, a hearing before an administrative law judge, and a discretionary review by an Appeals Council panel of three persons, one of whom must be from the U.S. Public Health Service. . It is the disparate treatment given to Milo and Dover-Foxcroft hospitals that gives rise to the equal protection claim. . The hospital sought to broaden the issue beyond HEW’s failure to file an EIS, by arguing that HEW had violated 42 U.S.C. § 4332(A), (B), and (D) by not pursuing an interdisciplinary approach, developing environmentally focused procedures, and exploring alternative uses of resources in its decision making process. Such contentions were not supported by the complaint or the evidence. At no time, on appeal, did the hospital attempt to invoke 42 U.S.C. § 4333, requiring internal agency review of policy and procedures in the light of NEPA. . Section 405(h) is facially applicable to determinations of the Secretary under Title II of the Social Security Act, but by 42 U.S.C. § 1395Ü is also made applicable to the present Title XVIII proceeding. So also is § 405(g) made applicable to this case by 42 U.S.C. § 1395ff(c). . The fact that the Secretary, not having been so requested, did not hold a hearing does not affect the “finality” of the decision within the meaning of § 405(g). It is clear from the statute, the regulations, and the Court’s decision in Salfi that, while an aggrieved person or institution has a right to a hearing, the holding of a hearing (which is not requested) is not a predicate to a final decision. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? A. Department of Agriculture B. Department of Commerce C. Department of Defense (includes War Department and Navy Department) D. Department of Education E. Department of Energy F. Department of Health, Education and Welfare G. Department of Health & Human Services H. Department of Housing and Urban Development I. Department of Interior J. Department of Justice (does not include FBI or parole boards; does include US Attorneys) K. Department of Labor (except OSHA) L. Post Office Department M. Department of State N. Department of Transportation, National Transportation Safety Board O. Department of the Treasury (except IRS) P. Department of Veterans Affairs Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Appellee, v. Samuel BERKOWITZ, Defendant, Appellant. No. 7587. United States Court of Appeals, First Circuit. July 10, 1970. Sheldon Newman, Chelsea, Mass., with whom Leader & Newman, Chelsea, Mass., was on brief, for appellant. James B. Krasnoo, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. Appellant, the proprietor of the Apollo Shoe Store in Chelsea, Massachusetts, was indicted and convicted of possession of goods of a value in excess of $100 stolen in interstate commerce, knowing them to have been stolen. He was sentenced to imprisonment for two years and fined $2,000. The goods involved were eight cartons of slippers under consignment from Phoenix Slipper Company in Secaucus, New Jersey to the W. T. Grant Store in Stoneham, Massachusetts. The carrier from which the slippers were taken was the Hemingway Trucking Company. Appellant attacks his conviction on the grounds that the eight cartons of slippers, which were admitted as evidence against him, should have been suppressed, that an invoice used to establish the value of the goods was inadmissible, and that his motions for acquittal and new trial were improperly denied. On the morning of May 21, Henry Alfonso, Hemingway’s terminal manager, notified the Federal Bureau of Investigation that he had reason to believe that a shipment of goods would be stolen. The truck carrying the slippers was placed under surveillance by two teams of FBI agents. During the surveillance, which lasted from 9:35 to 10:50 in the morning, the driver of the truck carrying the slippers was seen talking to the driver of a blue station wagon while making an unscheduled stop. At this time the station wagon was empty. For a fifteen minute period, contact was broken. When the surveillance of the station wagon was resumed the agents observed that it was loaded with cartons. They could also see the Hemingway truck further down the same street. Agents Collins and O’Malley followed the station wagon to the Apollo Shoe Store. There they observed the driver bringing the cartons into the store. Collins and O’Malley entered the store about 10:50 a.m. without a warrant and inquired for the owner. The appellant came forward to meet them. They introduced themselves as FBI agents and Collins asked where the cartons were that had just been delivered. At the same time O’Malley noticed some cartons to the rear of the store and read the name “Phoenix Slipper Company” on at least one of them. In response to Collins’ query, appellant said “over there” and pointed to where the cartons were located. In response to questions put by the agents, appellant said that he did not know the driver of the blue station wagon but he could describe him and that he would be returning; that he hadn’t paid anything for the cartons; and that if the goods were stolen, he didn’t want anything to do with them. At about this time, appellant was advised that the agents were seizing the cartons and their contents and agent O’Malley instructed the appellant as to his Miranda rights. At 11:15, without being asked, appellant closed his shop to the public. Between 11 and 3:30, however, he was free to move at will. He made telephone calls, went to the basement, to the bathroom, and several times left the store and returned. An employee, Bazylewicz, was also allowed to come and go during the day. At 11:40 the man who had driven the station wagon returned to the shoe store in a different vehicle, a black Chevrolet. As he approached the store agent O’Malley went to the door. The man looked at both O’Malley and the appellant, said something like “oh, nothing today” and left. Appellant made a hand motion, waving him off, as he had done with other customers. He did not identify this man although O’Malley recognized him as the same one who had delivered the cartons. Between 3:15 and 3:30 another FBI agent entered the store and placed appellant under arrest. Shortly before, the FBI had learned that there were more stolen cartons in the black Chevrolet. Between 3:30 and 4 the FBI removed the eight cartons from the store. In denying appellant’s pretrial motion to suppress, the district court held that the seizure of the goods did not take place until the cartons were removed and thus was incident to a lawful arrest. With this conclusion we cannot agree. When agent Collins was asked at what time he took possession of the cartons he replied, “at approximately 11 o’clock * * * we advised Mr. Berkowitz that we were seizing the cartons.” The record shows that he so informed the appellant at least twice. No one was permitted to touch the cartons and an agent was posted nearby to guard them. Furthermore, the agents testified that the reason the cartons were not removed before 3:30 p.m. was that they did not have enough manpower to do so. Unmistakably, the FBI exercised complete dominion over the goods by 11 a.m. Moreover, physical removal of the cartons is not the test. Although we do not agree with the reasoning employed by the district court, we reach the same result by a different route. In the first place, when the agents entered the store, the cartons they had reason to believe had been stolen were in plain view. Agent O’Malley was able to make out the words “Phoenix Slipper Company” even before appellant pointed toward the boxes. See United States v. Thomas, 396 F.2d 310 (2nd Cir. 1968). We think it settled that: “mere observation [does not] constitute a ‘search’. If an officer sees the fruits of crime — or what he has good reason to believe to be the fruits of crime — lying freely exposed on a suspect’s property, he is not required to look the other way, or disregard the evidence his senses bring him.” Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476, 478 (1953). We so held in Robbins v. MacKenzie, 364 F.2d 45, 47 (1st Cir.), cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966) and Fagundes v. United States, 340 F.2d 673, 676 (1st Cir. 1965). Appellant contends that the agents were on his property without legal justification because their reason for being there was not related to his trade. He argues that since their entrance was a trespass ab initio, whatever transpired afterwards was tainted. We do not agree. A commercial establishment when open to the public is open for all legitimate purposes. It was not' illegal to walk in with the intention of looking around. Such a rule in no way offends the traditional notions regarding the right of the individual to be secure against unwarranted governmental intrusion. Appellant also seeks to attach legal significance to the fact that the agents were halfway into the store before they saw the cartons. But once the agents were on the premises, in a place where they had a right to be, it is immaterial where they stood as long as the cartons were not concealed from view. The question remains whether the evidence should have been suppressed as the product of an unreasonable seizure within the contemplation of the Fourth Amendment. Appellant argues that a warrant should have been obtained before the cartons were seized. When the agents entered appellant’s place of business they had no cause to believe that he was involved in the theft. Their purpose was to ascertain whether the cartons delivered to the store were the same ones that had disappeared from the Hemingway truck. Appellant denied any involvement, appeared to cooperate with the agents, offered to identify the man who delivered the shoes upon his return and testify against him in court. When told by the agents that they believed the shoes were stolen, he said, “well, I don’t want any part of any hot shoes, any stolen shoes.” The protections guaranteed by the Fourth Amendment are not absolute; they may be waived. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Zap v. United States, 328 U.S. 624, 628, 66 S. Ct. 1277, 90 L.Ed. 1477 (1946), vacated on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947). Where consent is given, courts must go beyond appearances and inquire whether the consent was a “voluntary, intentional and understood waiver of a known right, or, on the contrary, was the product of deceit, duress and coercion, actual or implicit.” United States v. Curiale, 414 F.2d 744, 746 (2d Cir. 1969). Each case must be viewed on its own facts and in its own context. Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819, 820 (1954); United States v. Lewis, 274 F.Supp. 184, 188 (S.D.N.Y.1967). And factual distinctions such as whether. the defendant was under arrest, Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651 (1951); whether he was physically restrained, United States v. McCunn, 40 F.2d 295 (S.D.N.Y.1930); and where the seizure occurred, Trujillo v. United States, 294 F.2d 583 (10th Cir. 1961), are of great importance. The facts that distinguish this case from a host of others are that the seizure of the cartons took place long before any arrest was made and at a time when the appellant gave every appearance of cooperating with the authorities. His repeated assurance that if the cartons were stolen he wanted no part of them was a clear abandonment of any claim to the goods. This being the case, no warrant was needed to validate the seizure. Nor do the circumstances concerning appellant’s arrest show any overreaching on the part of the authorities. There is nothing to indicate that the agents coerced the appellant to allow them to remain on the premises. He volunteered the information that the person who delivered the shoes was expected to return. It was therefore reasonable for them to remain. He was not asked to close the store but did so of his own volition. Furthermore, he was allowed to move about freely and to leave the store several times. He did not ask the agents to leave the premises. By two o’clock, after he had failed to identify the man who came to the door just before noon as the man who had delivered the cartons earlier in the day, the agents certainly had probable cause to arrest him. The fact that he was not actually placed under arrest until three o’clock is immaterial barring a showing of prejudice. We are unaware of any right of a defendant to be arrested at a particular time. Appellant’s next contention is that because he was not given Miranda warnings until after his initial conversation with the agents, his statements could not be used in evidence against him. In light of the facts, our answer to this contention suggests itself. Miranda requires that the warnings be given when the person being interrogated is “in custody at the station or otherwise deprived of his freedom of action in any significant way.” The record clearly shows that appellant’s freedom of movement was not restricted prior to, or indeed, after the warnings. Nor is there any indication that he was subjected to any psychological pressure. Miranda does not preclude the authorities from asking routine questions in the performance of their duties. We come now to the question of the denial of appellant’s motions for judgment of acquittal and new trial. Although he maintains that the government failed to prove each and every element of the crime charged, he concentrates his attack on the element of knowledge. According to the appellant, the only evidence from which the jury could infer that he knew the slippers were stolen was the naked possession of the goods involved. This, he says, is not enough. Silverman v. United States, 2 F.2d 716 (6th Cir. 1924). The court’s instruction to the jury was most comprehensive on the subject of inferences. The jury was told that it was under no compulsion to draw an inference of guilty knowledge from possession but that it should consider the reasonableness of such an inference in light of all the circumstances. The circumstances which the jury could have taken into consideration were that the appellant accepted a shipment of goods plainly addressed to someone else, opened at least three of the cartons and removed slippers, failed to identify the man who delivered them after telling the FBI agents that he could do so, and waved the man off when he appeared at the door a short time thereafter. On these facts we think the jury was justified in inferring that the appellant knew the slippers had been stolen. Further objection is taken to that portion of the charge which states that “[i]n the absence of a reasonable explanation of defendant’s possession consistent with innocence, the jury may be warranted in finding a defendant guilty.” This instruction is said to encroach upon appellant’s right not to testify in his own behalf. When the charge is read in its entirety, however, it is clear that appellant’s Fifth Amendment rights were not violated. The court took great,pains to clarify the relationship between its instruction and the Fifth Amendment. In our opinion the jury was thoroughly apprised of the principles to be applied in ascertaining the element of knowledge. United States v. Minieri, 303 F.2d 550, 554 (2d Cir.), cert. denied, 371 U.S. 847, 83 S.Ct. 79, 9 L.Ed.2d 81 (1962). One further evidentiary point remains to be considered. In order to invoke the harsher penalties imposed by § 659 it was necessary for the government to show that the value of the slippers in question exceeded $100. It sought to do this through the introduction of an invoice made by Phoenix Slipper Company, the shipper of the goods. Hemingway’s terminal manager (Alfonso) testified that his company obtained the invoice from Phoenix for the purpose of determining its liability for the loss of the goods and that I.C.C. regulations required that such documents be kept in the usual and ordinary course of the carrier’s business. Also, he claimed to have personal knowledge as to how Hemingway’s claim department maintained its files, stated that the value appearing on the invoice was in excess of $100, but admitted he did not know whether the amount was an accurate estimation of the value of the slippers. Since the invoice was introduced for the purpose of establishing the truth of its contents, it should have been excluded unless it fits within one of the exceptions to the hearsay rule. The narrow question before us is whether it was admissible under the Federal Business Records Act. 28 U.S.C. § 1732 (1964). The rigid common law rule regarding admissibility of records was replaced by the shop book rule on the assumption that “the character of the records and their earmarks of reliability acquired from their source and origin and the nature of their compilation” guaranteed their dependability. Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 87 L.Ed. 645 (1943). The invoice introduced here as evidence of the value of the slippers was not a record “made” by Hemingway in the regular course of its business. It was merely a copy of an invoice made by someone else, sent on request to Hemingway, and kept by it for filing. The fact that Hemingway relied on the invoice to establish the amount of the loss does not supply the critical omission of any evidence that Phoenix made and preserved the invoice in the regular course of its business. Alfonso could testify to the receipt and retention of the invoice but not to its trustworthiness as a business record made by the Phoenix Slipper Company. Standard Oil Co. v. Moore, 251 F.2d 188, 213 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958); Ace Freight Forwarding Co. v. Balt. & O. R. R„ 202 A.2d 649 (D,C.Ct.App.l964); United States v. Martin, 167 F.Supp. 301, 303 (N.D.Ill.1958); cf. United States v. Shiver, 414 F.2d 461 (5th Cir. 1969); Phillips v. United States, 356 F. 2d 297, 307 (9th Cir. 1965), cert. denied, Walker v. United States, 384 U.S. 952, 86 S.Ct. 1573, 16 L.Ed.2d 548 (1966); Hagans v. Ellerman & Bucknall S. S. Co., 318 F.2d 563, 574-576 (3d Cir. 1963); Masterson v. Pennsylvania R. R., 182 F.2d 793, 797 (3d Cir. 1950); Clainos v. United States, 82 U.S.App.D.C. 278,163 F.2d 593, 595 (1947). Consequently, we are satisfied that appellant was prejudiced by the admission of the invoice but only insofar as it resulted in a stiffer sentence under the statute. In our opinion the proper remedy is to remand to the district court for imposition of a lesser sentence as provided in the statute. United States v. Horning, 409 F.2d 424, 426 (4th Cir. 1969); United States v. Ciongoli, 358 F.2d 439, 441 (3d Cir. 1966); Robinson v. United States, 333 F.2d 323, 326 (8th Cir. 1964); United States v. Wilson, 284 F.2d 407 (4th Cir. 1960). The case is remanded to the district court for proceedings consistent with this opinion. . “Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any pipeline system, railroad car, wagon, motor-truck, or other vehicle, or from any tank or storage facility, station, station house, platform or depot or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility with intent to convert to his own use any goods or chattels moving as or which are a part of which [sic] constitute an interstate or foreign shipment of freight, or express, or other property; or “Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen; ***** “Shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both; but if the amount or value of such money, baggage, goods or chattels does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.” 18 U.S.C. § 659 (Supp. V, 1970). . Since no objection to the charge was made at trial, our only concern is whether there was plain error. . It stated: “The second aspect of this rule that should be clarified has to do with possession without a reasonable explanation, and the phrase appears again in this rule, ‘in the absence of a reasonable explanation of the defendant’s possession.’ If you find that the goods were stolen and if you find that Mr. Berkowitz had possession, and if you consider application of this rule to the case, you must understand that that explanation does not have to come from Mr. Berkowitz’s lips. That rule does not govern in any way his right not to testify or his right not to make a statement in the absence of counsel under the principles that I have referred to earlier. It means without a reasonable explanation by other facts or circumstances. * * * ” . See n. 1, ««pro. . “(a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter. “All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility. “The term ‘business,’ as used in this section, includes business, profession, occupation, adn calling of every kind.” 28 U.S.O. § 1732(a) (1964). 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_direct1	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Dr. Ricardo CABARGA CRUZ, Plaintiff, Appellee, v. FUNDACION EDUCATIVA ANA G. MENDEZ, INC., Defendant, Appellant. Dr. Ricardo CABARGA CRUZ, Plaintiff, Appellant, v. FUNDACION EDUCATIVA ANA G. MENDEZ, INC., Defendant, Appellee. Nos. 86-1657, 86-1658. United States Court of Appeals, First Circuit. Argued Feb. 3, 1987. Decided June 23, 1987. A.J. Amadeo Murga, Hato Rey, P.R., for Fundación Educativa Ana G. Mendez, Inc. Teresa M. Lube de Bothwell, San Juan, P.R., for Dr. Ricardo Cabarga Cruz. Before BOWNES, Circuit Judge, WISDOM, Senior Circuit Judge, and TORRUELLA, Circuit Judge. Of the Fifth Circuit, sitting by designation. WISDOM, Senior Circuit Judge: This appeal raises questions involving an action by an employee against his employer under § 301 of the Labor Management Relations Act. The defendant contends that the district court erred in concluding that the plaintiff’s action was not barred by either the statute of limitations or an exhaustion of remedies requirement. The plaintiff asserts that the district court erred in refusing to reinstate him and award him back pay. We affirm. FACTS The plaintiff, Dr. Ricardo Cabarga Cruz, was hired as a teacher in 1976 by the defendant, Fundación Educativa Ana G. Mendez, Inc. Dr. Cabarga continued teaching until December 1978, at which time the Fundación terminated his employment. Dr. Cabarga believed that the Fundacion’s action was in violation of his employment agreement. As required by the existing collective bargaining agreement, Dr. Cabarga filed a complaint with the grievance and arbitration committee, which is composed of representatives of both the employer and the union, asserting that his dismissal was improper. The committee met in December 1978, but did not consider Dr. Cabarga’s grievance. Rather, consideration of that matter was scheduled for the committee’s next meeting, which was to be held on January 16, 1979. That meeting, however, did not take place. Apparently, the Fundacion’s representatives and one of the union’s representatives went to where they thought the meeting was to take place, the union’s offices, while the remainder of the union’s representatives went to a faculty room where they thought the meeting was to take place. Who was responsible for this mistake is not entirely clear. The committee did not subsequently meet, and Dr. Cabarga’s grievance was never considered. In October 1979, Dr. Cabarga filed suit in the Puerto Rico Superior Court alleging that he had been wrongfully terminated. The action was removed to the United States District Court for the District of Puerto Rico. The Fundación moved for summary judgment and asserted that Dr. Cabarga’s action was barred both because it was untimely and because he had failed to exhaust the grievance and arbitration remedies in the collective bargaining agreement. In ruling on the Fundacion’s motion for summary judgment, the district court concluded that Dr. Cabarga’s action was not barred by the statute of limitations. The district court concluded, however, that it could not rule on the exhaustion issue until after a full hearing. This issue was therefore scheduled for trial along with the substantive issue: whether the Fundación had improperly terminated Dr. Cabarga’s employment. Following trial, the district court concluded that Dr. Cabarga’s action was not barred as a result of his failure to exhaust the available grievance procedures. The district court also concluded that the Fundación had improperly terminated Dr. Cabarga. The district court held, however, that Dr. Cabarga was not entitled to reinstatement and back pay. Rather, the court awarded damages of $6,600. Both parties now appeal. DISCUSSION 1. Statute of Limitations The question whether Dr. Cabarga’s cause of action is barred by the statute of limitations turns upon whether the action is subject to the six month statute of limitations established by the United States Supreme Court in DelCostello v. International Brotherhood of Teamsters for hybrid § 301/fair representation claims. A hybrid claim is one in which the plaintiff has a cause of action against both the employer and the union. The typical hybrid action involves a claim that the employer violated the collective bargaining agreement and the union failed to handle properly the grievance of the plaintiff-employee who was injured as a result of the employer’s action. In DelCostello, the Supreme Court ruled that the applicable statute of limitations for such an action is six months, as provided in § 10(b) of the National Labor Relations Act. The six month statute of limitations applies to such a hybrid suit whether the employee sues the employer, the union, or both. The DelCostello Court was, however, careful to point out that the six month limitations period established for hybrid claims should not be applied to all labor claims. Indeed, the Court made clear that borrowing state statutes of limitations would remain the norm for most labor actions when state law provides an apt analogy. If a claim represents, in essence, purely a breach of contract action against the employer, the proper limitations period is not the six month period established by DelCostello, but rather that provided by state law for breach of contract actions. The Fundación effectively concedes that Dr. Cabarga’s action was not time barred if the law of Puerto Rico provides the statute of limitations. The statute of limitations question therefore turns upon whether Dr. Cabarga’s action is a hybrid claim or a straight breach of contract claim. The district court correctly concluded that Dr. Cabarga’s action was a simple breach of contract claim. The court found no evidence that the union was guilty of an unfair representation. Moreover, the Fundacion’s own actions refute its present contention that the union’s conduct amounted to an unfair representation. The record reveals that the Fundación withdrew its defense that the union was at least partially responsible for Dr. Cabarga’s injuries. Had the Fundación believed that the union was guilty of an unfair representation, it likely would not have withdrawn this defense, because the union, not the Fundación, would have been liable for the injuries to Dr. Cabarga that would not have occurred but for its unfair representation. Because Dr. Cabarga’s action is essentially a breach of contract claim, the six month statute of limitations established in DelCostello does not apply and the action is not time barred. 2. Exhaustion of Remedies It is undisputed that Dr. Cabarga did not exhaust the grievance remedies provided under the Fundacion’s collective bargaining agreement. Ordinarily, an employee must exhaust such remedies before instituting a civil action against his employer under § 301 of the Labor Relations Management Act. The courts have, however, recognized three exceptions to this rule. A plaintiff need not exhaust such remedies if: the union has the sole power to invoke the grievance procedures and the union wrongfully refuses to process or perfunctorily handles the grievance; resort to the grievance procedures would be futile; or the employer repudiates the grievance procedures. The district court concluded that exhaustion was not required because Dr. Cabarga had proved repudiation. We agree. There is little question that Dr. Cabarga initiated the grievance procedures and did all that he was able to do insofar as exhausting the grievance and arbitration remedies is concerned. Through no fault of his own, the grievance was not processed. Although one could argue that the union was responsible for the stalled grievance procedures, the Fundación has, as noted above, specifically withdrawn its assertion that the union handled Dr. Cabarga’s grievance improperly. This leads to the conclusion that the responsibility for Dr. Cabarga’s failure to exhaust the grievance remedies rests with the Fundación. The conclusion that the Fundación repudiated the grievance and arbitration procedures is also supported by the Fundacion’s consistent position that Dr. Cabarga was not covered by the collective bargaining agreement. When an employer repudiates the entire contract or maintains that the contract is inapplicable, that action constitutes a repudiation of the grievance and arbitration procedures contained in that contract. Therefore, Dr. Cabarga was not required to exhaust the grievance remedies. 3. Reinstatement and Back Pay The district court found that Dr. Cabarga started as a temporary employee but was subsequently given two consecutive twelve month appointments. Under the employment agreement between Dr. Cabarga and the Fundación, Dr. Cabarga was entitled after two years of consecutive employment to an evaluation to determine his future status with the Fundación. The Fundación terminated Dr. Cabarga’s employment without an evaluation or any other form of notice. The district court concluded that as a result of the failure to provide Dr. Cabarga an evaluation or notice, Dr. Cabarga “was left in limbo with no salary for a period of almost six months”. The district court therefore awarded Dr. Cabarga six months salary at the rate of $1,100 per month. Dr. Cabarga asserts that the district court erred in fashioning its remedy because it declined to award the “make-whole” remedy, reinstatement and back pay. Given the circumstances of this case, we must disagree with Dr. Cabarga. It is undisputed that Dr. Cabarga was entitled to an evaluation that the Fundación failed to provide. Dr. Cabarga did not ask the district court to order the Fundación to provide such an evaluation. Rather, Dr. Cabarga asked the district court to place him in the position that he would have occupied had he passed the evaluation test. Under the employment agreement, if an instructor passes the evaluation test and thereby enters the tenure track, the Fundación is required to extend annual appointments for the next three years and any action taken by the Fundación that could affect that instructor’s employment status is subject to the grievance and arbitration process. As the district court noted, however, no evidence was submitted concerning the scope of or discretion involved in the evaluation process. The district court was therefore unable to determine whether Dr. Cabarga would have received a favorable evaluation. Unquestionably, the terms of the employment agreement did not guarantee that an instructor would enter the tenure track as a result of a mere lapse of time, nor was evidence presented to the effect that this was a common “shop practice” for the Fundación. As the district court noted: Awarding reinstatement and back pay under such conditions would be tantamount to placing plaintiff in a position that he had no right to be under the terms of the collective bargaining agreement and the [Faculty] Handbooks. See Rivera-Morales v. Benitez-de-Rexach, 541 F.2d 882, 886 (1st Cir.1976); De Arroyo v. Sindicato de Trabajadores Packing, AFL-CIO, 425 F.2d 281, 291 (1st Cir.1970); cf. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (civil rights constitutional due process violation did not justify placing plaintiff in a position she was not entitled to). In addition, reinstating plaintiff with back pay and accumulated seniority rights would amount to sidestepping the internal procedures of a college institution for the evaluation and promotion of its professors, an intrusion that is generally disfavored, see Gurma[n]kin v. Costanzo, 626 F.2d 1115, 1125-26 (3rd Cir. 1980) and gen. Regents of the Univ. of Michigan v. Ewing, [474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985)], and uncalled for in the present case given the collective bargaining agreement’s exclusion of the two year evaluation results from the grievance and arbitration procedure, the only part of the collective bargaining agreement where remedies of back pay and reinstatement are allowed. But for the Fundacion’s breach, Dr. Cabarga would have received an evaluation, not necessarily continued employment. Dr. Cabarga did not request that the district court order the Fundación to provide an evaluation, and the district court appropriately concluded that the reinstatement and back pay would be improper. Rather, the court awarded damages, and in calculating damages, the district court determined the loss to Dr. Cabarga caused by the Fundacion’s failure to provide an evaluation. Dr. Cabarga’s argument that the district court erred in remedying the Fundacion’s breach is therefore without merit. CONCLUSION The district court properly concluded that Dr. Cabarga’s action was not barred either by the DelCostello six month statute of limitations or by the requirement that an employee exhaust the grievance and arbitration remedies provided in a collective bargaining agreement before filing a civil suit. Finally, the district court did not err in declining to reinstate Dr. Cabarga and award him back pay. The decision of the district court is therefore affirmed. . 29 U.S.C. § 185. . Cabarga-Cruz v. Fundacion Educativa Ana G. Mendez, Inc., 609 F.Supp. 1207, 1214-16 (D.P.R.1985). . Id. at 1213-14. . 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). . 29 U.S.C. § 160(b). See 462 U.S. 151, 103 S.Ct. 2281. . DelCostello, 462 U.S. at 165, 103 S.Ct. at 2291. Farr v. H.K. Porter Co., 727 F.2d 502, 504 (5th Cir.1984). . DelCostello, 462 U.S. at 171-72, 103 S.Ct. at 2294-95. . Garcia v. Eidal Int'l Corp., 808 F.2d 717 (10th Cir. 1986); O’Hare v. General Marine Transp. Corp., 740 F.2d 160, 167-68 (2d Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1181, 84 L.Ed.2d 329 (1985); Farr, 727 F.2d at 505; Erkins v. United Steelworkers of America, 723 F.2d 837, 839 (11th Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984); cf. UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966); DelCostello, 462 U.S. at 162-63 & 171-72, 103 S.Ct. at 2289-90, 2294-95. . Cabarga-Cruz, 609 F.Supp. at 1210-11 & 1215-16. . Vaca v. Sipes, 386 U.S. 171, 187-88, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); De Arroyo v. Sindicato de Trabajadores Packing, 425 F.2d 281, 289-90 (1st Cir.), cert. denied, 400 U.S. 877, 91 S.Ct. 121, 27 L.Ed.2d 115 (1970). . Vaca, 386 U.S. at 184, 87 S.Ct. at 913. . Id. at 185-86, 87 S.Ct. at 914-15. DelCostello, 462 U.S. at 164, 103 S.Ct. at 2291. . Glover v. St. Louis-San Francisco R. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 875 (3d Cir.1972). . Vaca, 386 U.S. at 185, 87 S.Ct. at 914; Smith, 464 F.2d at 875. . Although the record is not entirely clear, it appears that one of the Fundacion’s representatives to the grievance and arbitration committee was the president of the committee and that it was he who was responsible for calling meetings and properly summoning members to those meetings. One of the union representatives testified that he did not receive proper notice of the January meeting of the committee and went to the wrong place as a result. Because of this mix-up, the meeting was not held and Dr. Cabarga’s grievance was not considered. There is no question that no subsequent meeting of the committee was ever called or held. . Garcia, 808 F.2d at 721-22, Smith, 464 F.2d at 875-76. The Fundacion’s failure to attempt to resolve Dr. Cabarga's grievance through the grievance and arbitration committee is consistent with the view that the Fundación never considered his grievance to be one under the collective bargaining agreement. . For this reason, De Arroyo v. Sindicato de Trabajadores Packing, 425 F.2d 281 (1st Cir.), cert. denied, 400 U.S. 877, 91 S.Ct. 121, 27 L.Ed.2d 115 (1970), does not support Dr. Cabarga’s position. In De Arroyo, the employees would have remained employed but for the employer’s breach.. Therefore, reinstatement and backpay was an appropriate remedy in that case. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. CITY OF CANTON, OHIO v. HARRIS et al. No. 86-1088. Argued November 8, 1988 Decided February 28, 1989 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Blackmun, and Stevens, JJ., joined, and in Parts I, II, and III of which O’Connor, Scalia, and Kennedy, JJ., joined, except as to n. 11. Brennan, J., filed a concurring opinion, post, p. 393. O’Connor, J., filed an opinion concurring in part and dissenting in part, in which Scalia and Kennedy, JJ., joined, post, p. 393. Carter G. Phillips argued the cause for petitioner. With him on the briefs were Mark D. Hopson, W. Scott Givin, William J. Hamann, and John S. Coury. David Rudovsky argued the cause for respondent. With him on the brief were Emanuella Hams Groves and Dexter W. Clark Benna Ruth Solomon, Beate Bloch, and Richard K, Willard filed a brief for the International City Management Association et al. as amici curiae urging reversal. John A. Powell, Steven R. Shapiro, Howard A. Friedman, and Michael Aaron Avery filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. Justice White delivered the opinion of the Court. In this case, we are asked to determine if a municipality can ever be liable under 42 U. S. C. § 1983 for constitutional violations resulting from its failure to train municipal employees. We hold that, under certain circumstances, such liability is permitted by the statute. I In April 1978, respondent Geraldine Harris was arrested by officers of the Canton Police Department. Mrs. Harris was brought to the police station in a patrol wagon. When she arrived at the station, Mrs. Harris was found sitting on the floor of the wagon. She was asked if she needed medical attention, and responded with an incoherent remark. After she was brought inside the station for processing, Mrs. Harris slumped to the floor on two occasions. Eventually, the police officers left Mrs. Harris lying on the floor to prevent her from falling again. No medical attention was ever summoned for Mrs. Harris. After about an hour, Mrs. Harris was released from custody, and taken by an ambulance (provided by her family) to a nearby hospital. There, Mrs. Harris was diagnosed as suffering from several emotional ailments; she was hospitalized for one week and received subsequent outpatient treatment for an additional year. Some time later, Mrs. Harris commenced this action alleging many state-law and constitutional claims against the city of Canton and its officials. ■ Among these claims was one seeking to hold the city liable under 42 U. S. C. § 1983 for its violation of Mrs. Harris’ right, under the Due Process Clause of the Fourteenth Amendment, to receive necessary medical attention while in police custody. A jury trial was held on Mrs. Harris’ claims. Evidence was presented that indicated that, pursuant to a municipal regulation, shift commanders were authorized to determine, in their sole discretion, whether a detainee required medical care. Tr. 2-139 — 2-143. In addition, testimony also suggested that Canton shift commanders were not provided with any special training (beyond first-aid training) to make a determination as to when to summon medical care for an injured detainee. Ibid.; App. to Pet. for Cert. 4a. At the close of the evidence, the District Court submitted the case to the jury, which rejected all of Mrs. Harris’ claims except one: her § 1983 claim against the city resulting from its failure to provide her with medical treatment while in custody. In rejecting the city’s subsequent motion for judgment notwithstanding the verdict, the District Court explained the theory of liability as follows: “The evidence construed in a manner most favorable to Mrs. Harris could be found by a jury to demonstrate that the City of Canton had a custom or policy of vesting complete authority with the police supervisor of when medical treatment would be administered to prisoners. Further, the jury could find from the evidence that the vesting of such carte blanche authority with the police supervisor without adequate training to recognize when medical treatment is needed was grossly negligent or so reckless that future police misconduct was almost inevitable or substantially certain to result.” Id., at 16a. On appeal, the Sixth Circuit affirmed this aspect of the District Court’s analysis, holding that “a municipality is liable for failure to train its police force, [where] the plaintiff . . . prove[s] that the municipality acted recklessly, intentionally, or with gross negligence.” Id., at 5a. The Court of Appeals also stated that an additional prerequisite of this theory of liability was that the plaintiff must prove “that the lack of training was so reckless or grossly negligent that deprivations of persons’ constitutional rights were substantially certain to result.” Ibid. Thus, the Court of Appeals found that there had been no error in submitting Mrs. Harris’ “failure to train” claim to the jury. However, the Court of Appeals reversed the judgment for respondent, and remanded this case for a new trial, because it found that certain aspects of the District Court’s jury instructions might have led the jury to believe that it could find against the city on a mere respondeat superior theory. Because the jury’s verdict did not state the basis on which it had ruled for Mrs. Harris on her § 1983 claim, a new trial was ordered. The city petitioned for certiorari, arguing that the Sixth Circuit’s holding represented an impermissible broadening of municipal liability under § 1983. We granted the petition. 485 U. S. 933 (1988). II We first address respondent’s contention that the writ of certiorari should be dismissed as improvidently granted, because “petitioner failed to preserve for review the principal issues it now argues in this Court.” Brief for Respondent 5. We think it clear enough that petitioner’s three “Questions Presented” in its petition for certiorari encompass the critical question before us in this case: Under what circumstances can inadequate training be found to be a “policy” that is actionable under § 1983? See Pet. for Cert. i. The petition itself addressed this issue directly, attacking the Sixth Circuit’s “failure to train” theory as inconsistent with this Court’s precedents. See id., at 8-12. It is also clear — as respondent conceded at argument, Tr. of Oral Arg. 34, 54— that her brief in opposition to our granting of certiorari did not raise the objection that petitioner had failed to press its claims on the courts below. As to respondent’s contention that the claims made by petitioner here were not made in the same fashion below, that failure, if it occurred, does not affect our jurisdiction; and because respondent did not oppose our grant of review at that time based on her contention that these claims were not pressed below, we will not dismiss the writ as improvidently granted. “[T]he ‘decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits ... of the questions presented in the petition.”’ St. Louis v. Praprotnik, 485 U. S. 112, 120 (1988) (quoting Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985)). As we have expressly admonished litigants in respondent’s position: “Nonjurisdictional defects of this sort should be brought to our attention no later than in respondent’s brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived.” Tuttle, supra, at 816. It is true that petitioner’s litigation posture with respect to the questions presented here has not been consistent; most importantly, petitioner conceded below that “‘inadequate training’ [is] a means of establishing municipal liability under Section 1983.” Reply Brief for Petitioner 4, n. 3; see also Petition for Rehearing in No. 85-3314 (CA6), p. 1. However, at each stage in the proceedings below, petitioner contested any finding of liability on this ground, with objections of varying specificity. It opposed the District Court’s jury instructions on this issue, Tr. 4-369; claimed in its judgment notwithstanding verdict motion that there was “no evidence of a . . . policy or practice on the part of the City . . . [of] den[ying] medical treatment to prisoners,” Motion for Judgment Notwithstanding Verdict in No. C80-18-A (ND Ohio), p. 1; and argued to the Court of Appeals that there was no basis for finding a policy of denying medical treatment to prisoners in this case. See Brief for Appellant in No. 85-3314 (CA6), pp. 26-29. Indeed, petitioner specifically contended that the Sixth Circuit precedents that permitted inadequate training to be a basis for municipal liability on facts similar to these, see n. 3, supra, were in conflict with our decision in Tuttle. Brief for Appellant in No. 85-3314 (CA6), p. 29. These various presentations of the issues below might have been so inexact that we would have denied certiorari had this matter been brought to our attention at the appropriate stage in the proceedings. But they were at least adequate to yield a decision by the Sixth Circuit on the questions presented for our review now. Here the Sixth Circuit held that where a plaintiff proves that a municipality, acting recklessly, intentionally, or with gross negligence, has failed to train its police force — resulting in a deprivation of constitutional rights that was “substantially certain to result”— § 1983 permits that municipality to be held liable for its actions. Petitioner’s petition for cer-tiorari challenged the soundness of that conclusion, and respondent did not inform us prior to the time that review was granted that petitioner had arguably conceded this point below. Consequently, we will not abstain from addressing the question before us. Ill In Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), we decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under §1983. Id., at 694-695. “It is only when the ‘execution of the government’s policy or custom . . . inflicts the injury’ that the municipality may be held liable under § 1983.” Springfield v. Kibbe, 480 U. S. 257, 267 (1987) (O’Connor, J., dissenting) (quoting Monell, supra, at 694). Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The inquiry is a difficult one; one that has left this Court deeply divided in a series of cases that have followed Monell; one that is the principal focus of our decision again today. A Based on the difficulty that this Court has had defining the contours of municipal liability in these circumstances, petitioner urges us to adopt the rule that a municipality can be found liable under § 1983 only where “the policy in question [is] itself unconstitutional.” Brief for Petitioner 15. Whether such a rule is a valid construction of § 1983 is a question the Court has left unresolved. See, e. g., St. Louis v. Praprotnik, supra, at 147 (Brennan, J., concurring in judgment); Oklahoma City v. Tuttle, supra, at 824, n. 7. Under such an approach, the outcome here would be rather clear: we would have to reverse and remand the case with instructions that judgment be entered for petitioner. There can be little doubt that on its face the city’s policy regarding medical treatment for detainees is constitutional. The policy states that the city jailer “shall . . . have [a person needing medical care] taken to a hospital for medical treatment, with permission of his supervisor . . . App. 33. It is difficult to see what constitutional guarantees are violated by such a policy. Nor, without more, would a city automatically be liable under § 1983 if one of its employees happened to apply the policy in an unconstitutional manner, for liability would then rest on respondeat superior. The claim in this case, however, is that if a concededly valid policy is unconstitutionally applied by a municipal eihployee, the city is liable if the employee has not been adequately trained and the constitutional wrong has been caused by that failure to train. For reasons explained below, we conclude, as have all the Courts of Appeáls that have addressed this issue, that there are limited circumstances in which an allegation of a “failure to train” can be the basis for liability under § 1983. Thus, we reject petitioner’s contention that only unconstitutional policies are actionable under the statute. B Though we agree with the court below that a city can be liable under § 1983 for inadequate training of its employees, we cannot agree that the District Court’s jury instructions on this issue were proper, for we conclude that the Court of Appeals provided an overly broad rule for when a municipality can be held liable under the “failure to train” theory. Unlike the question whether a municipality’s failure to train employees can ever be a basis for § 1983 liability — on which the Courts of Appeals have all agreed, see n. 6, supra,— there is substantial division among the lower courts as to what degree of fault must be evidenced by the municipality’s inaction before liability will be permitted. We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. This rule is most consistent with our admonition in Monell, 436 U. S., at 694, and Polk County v. Dodson, 454 U. S. 312, 326 (1981), that a municipality can be liable under § 1983 only where its policies are the “moving force [behind] the constitutional violation.” Only where a municipality’s failure to train its employees in a relevant respect evidences a “deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of as a city “policy or custom” that is actionable under § 1983. As Justice Brennan’s opinion in Pembaur v. Cincinnati, 475 U. S. 469, 483-484 (1986) (plurality) put it: “[MJunicipal liability under §1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives” by city policymakers. See also Oklahoma City v. Tuttle, 471 U. S., at 823 (opinion of Rehn-QUIST, J.). Only where a failure to train reflects a “deliberate” or “conscious” choice by a municipality — a “policy” as defined by our prior cases — can a city be liable for such a failure under § 1983. Monell’s rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. In resolving the issue of a city’s liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program. See Springfield v. Kibbe, 480 U. S., at 268 (O’Con-nor, J., dissenting); Oklahoma City v. Tuttle, supra, at 821 (opinion of Rehnquist, J.). It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable. Moreover, for liability to attach in this circumstance the identified deficiency in a city’s training program must be closely related to the ultimate injury. Thus in the case at hand, respondent must still prove that the deficiency in training actually caused the police officers’ indifference to her medical needs. Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect? Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task. To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city “could have done” to prevent the unfortunate incident. See Oklahoma City v. Tuttle, 471 U. S., at 823 (opinion of Rehn-QUIST, J.). Thus, permitting cases against cities for their “failure to train” employees to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities —a result we rejected in Monell, 436 U. S., at 693-694. It would also engage the federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism. Cf. Rizzo v. Goode, 423 U. S. 362, 378-380 (1976). Consequently, while claims such as respondent’s — alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered— are cognizable under § 1983, they can only yield liability against a municipality where that city’s failure to train reflects deliberate indifference to the constitutional rights of its inhabitants. IV The final question here is whether this case should be remanded for a new trial, or whether, as petitioner suggests, we should conclude that there are no possible grounds on which respondent can prevail. See Tr. of Oral Arg. 57-58. It is true that the evidence in the record now does not meet the standard of § 1983 liability we have set forth above. But, the standard of proof the District Court ultimately imposed on respondent (which was consistent with Sixth Circuit precedent) was a lesser one than the one we adopt today, see Tr. 4-389 — 4-390. Whether respondent should have an opportunity to prove her case under the “deliberate indifference” rule we have adopted is a matter for the Court of Appeals to deal with on remand. V Consequently, for the reasons given above, we vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion. It is so ordered. Title 42 U. S. C. § 1983 provides, in relevant part, that: “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . 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. ...” The city regulation in question provides that a police officer assigned to act as “jailer” at the city police station “shall, when a prisoner is found to be unconscious or semi-unconscious, or when he or she is unable to explain his or her condition, or who complains of being ill, have such person taken to a hospital for medical treatment, with permission of his supervisor before admitting the person to City Jail.” App. 33. In upholding Mrs. Harris’ “failure to train” claim, the Sixth Circuit relied on two of its previous decisions which had approved such a theory of municipal liability under § 1983. See Rymer v. Davis, 754 F. 2d 198, vacated and remanded sicb nom. Shepherdsville v. Rhymer, 473 U. S. 901, reinstated, 775 F. 2d 756, 757 (1985); Hays v. Jefferson County, 668 F. 2d 869, 874 (1982). See, e. g., St. Louis v. Praprotnik, 485 U. S. 112 (1988); Springfield v. Kibbe, 480 U. S. 257 (1987); Los Angeles v. Heller, 475 U. S. 796 (1986); Oklahoma City v. Tuttle, 471 U. S. 808 (1985). In this Court, in addition to suggesting that the city’s failure to train its officers amounted to a “policy” that resulted in the denial of medical care to detainees, respondent also contended the city had a “custom” of denying medical care to those detainees suffering from emotional or mental ailments. See Brief for Respondent 31-32; Tr. of Oral Arg. 38-39. As respondent described it in her brief, and at argument, this claim of an unconstitutional “custom” appears to be little more than a restatement of her “failure-to-train as policy” claim. See ibid. However, to the extent that this claim poses a distinct basis for the city’s liability under § 1983, we decline to determine whether respondent’s contention that such a “custom” existed is an alternative ground for affirmance. The “custom” claim was not passed on by the Court of Appeals —nor does it appear to have been presented to that court as a distinct ground for its decision. See Brief of Appellee in No. 85-3314 (CA6), pp. 4-9, 11. Thus, we will not consider it here. In addition to the Sixth Circuit decisions discussed in n. 3, supra, most of the other Courts of Appeals have held that a failure to train can create liability under §1983. See, e. g., Spell v. McDaniel, 824 F. 2d 1380, 1389-1391 (CA4 1987); Haynesworth v. Miller, 261 U. S. App. D. C. 66, 80-83, 820 F. 2d 1245, 1259-1262 (1987); Warren v. Lincoln, 816 F. 2d 1254, 1262-1263 (CA8 1987); Bergquist v. County of Cochise, 806 F. 2d 1364, 1369-1370 (CA9 1986); Wierstak v. Heffernan, 789 F. 2d 968, 974 (CA1 1986); Fiacco v. Rensselaer, 783 F. 2d 319, 326-327 (CA2 1986); Gilmere v. Atlanta, 774 F. 2d 1495, 1503-1504 (CA11 1985) (en banc); Rock v. McCoy, 763 F. 2d 394, 397-398 (CA10 1985); Languirand v. Hayden, 717 F. 2d 220, 227-228 (CA5 1983). Two other Courts of Appeals have stopped short of expressly embracing this rule, and have instead only implicitly endorsed it. See, e. g., Colburn v. Upper Darby Township, 838 F. 2d 663, 672-673 (CA3 1988); Lenard v. Argento, 699 F. 2d 874, 885-887 (CA7 1983). In addition, six current Members of this Court have joined opinions in the past that have (at least implicitly) endorsed this theory of liability under § 1983. See Oklahoma City v. Tuttle, supra, at 829-831 (Brennan, J., joined by Marshall and Blackmun, JJ., concurring in part and concurring in judgment); Springfield v. Kibbe, supra, at 268-270 (O’Con-nor, J., joined by Rehnquist, C. J., and Powell and White, JJ., dissenting). Some courts have held that a showing of “gross negligence” in a city’s failure to train its employees is adequate to make out a claim under § 1983. See, e. g., Bergquist v. County of Cochise, supra, at 1370; Herrera v. Valentine, 653 F. 2d 1220, 1224 (CA8 1981). But the more common rule is that a city must exhibit “deliberate indifference” towards the constitutional rights of persons in its domain before a § 1983 action for “failure to train” is permissible. See, e. g., Fiacco v. Rensselaer, supra, at 326; Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1985); Wellington v. Daniels, 717 F. 2d 932, 936 (CA4 1983); Languirand v. Hayden, supra, at 227. The “deliberate indifference” standard we adopt for § 1983 “failure to train” claims does not turn upon the degree of fault (if any) that a plaintiff must show to make out an underlying claim of a constitutional violation. For example, this Court has never determined what degree of culpability must be shown before the particular constitutional deprivation asserted in this case — a denial of the due process right to medical care while in detention — is established. Indeed, in Revere v. Massachusetts General Hospital, 463 U. S. 239, 243-245 (1983), we reserved decision on the question whether something less than the Eighth Amendment’s “deliberate indifference” test may be applicable in claims by detainees asserting violations of their due process right to medical care while in custody. We need not resolve here the question left open in Revere for two reasons. First, petitioner has conceded that, as the case comes to us, we must assume that respondent’s constitutional right to receive medical care was denied by city employees — whatever the nature of that right might be. See Tr. of Oral Arg. 8-9. Second, the proper standard for determining when a municipality will be liable under § 1983 for constitutional wrongs does not turn on any underlying culpability test that determines when such wrongs have occurred. Cf. Brief for Respondent 27. The plurality opinion in Tuttle explained why this must be so: “Obviously, if one retreats far enough from a constitutional violation some municipal ‘policy’ can be identified behind almost any . . . harm inflicted by a municipal official; for example, [a police officer] would never have killed Tuttle if Oklahoma City did not have a ‘policy’ of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was ‘caused’ by the municipal ‘policy.’” 471 U. S., at 823. Cf. also id., at 833, n. 9 (opinion of Brennan, J.). For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U. S. 1 (1985), can be said to be “so obvious,” that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights. It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are “deliberately indifferent” to the need. The record indicates that city did train its officers and that its training included first-aid instruction. See App. to Pet. for Cert. 4a. Petitioner argues that it could not have been obvious to the city that such training was insufficient to administer the written policy, which was itself constitutional. This is a question to be resolved on remand. See Part IV, infra. Respondent conceded as much at argument. See Tr. of Oral Arg. 50-51; cf. also Oklahoma City v. Tuttle, supra, at 831 (opinion of Brennan, J.). 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_issue_1	28	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. No. 318. Gordon et al. v. United States. Argued January 11, 1954. Decided February 8, 1954. Per Curiam: Petitioners are business partners in the sale of appliances. They were convicted under § 603 of the Defense Production Act of 1950, 64 Stat. 814, which provides that “Any person who willfully violates” regulations promulgated under the Act shall be guilty of crime. The jury was instructed that the knowledge of petitioners’ employees was chargeable to petitioners in determining petitioners’ wilfulness. Because of the instruction, the Government has confessed error. We agree, and accordingly reverse the judgment and remand the case to the District Court for retrial. John S. Boyden argued the cause for petitioners. With him on the brief was Allen H. Tib-bals. John R. Benney argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney and Beatrice Rosenberg. 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_habeas	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts. Clyde L. HARDY and Lee Roy Ferguson, Appellants, v. UNITED STATES of America, Appellee. No. 20183. United States Court of Appeals District of Columbia Circuit. Argued Sept. 14. 1966. Decided June 19, 1967. Petition for Rehearing En Banc Denied Oct. 4, 1967. Mr. Carl V. Lyon, Washington, D. C. (appointed by this court), with whom Mr. Edward G. Howard, Washington, D. C., was on the brief, for appellants. Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Earl J. Silbert, Asst. U. S. Attys., were on the brief, for appellee. Before Bazelon, Chief Judge, and Fahy and Tamm, Circuit Judges. Circuit Judge Fahy became Senior Circuit Judge on April 13, 1967. TAMM, Circuit Judge. This court is again asked to reverse the narcotics laws convictions of these two appellants. This sought after relief is denied. These appellants were convicted by a jury on a multiple count indictment charging violations of the narcotics laws in a trial conducted by a judge of this court sitting pursuant to 28 U.S.C. § 291(c) (1949), as amended, (Supp. I, 1966), as a District Court judge. They appealed to this court, alleging as a ground for their appeal that their right to a fair trial had been violated by a delay of approximately seven and one-half months between the time of the offenses with which they were charged and their arrests. On August 20, 1964, a duly constituted panel of this court affirmed their convictions, Hardy & (Ferguson) v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233. That panel, in its carefully considered opinion, concluded that “[t]he delay between alleged act and arrest was not oppressive and the delay between arrest and trial did not violate appellants’ Sixth Amendment rights. Smith v. United States, 1964,118 U.S.App.D.C. 38, 331 F.2d 784 (en banc); Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808 (1963).” Subsequently, all of the judges of this court considered the appellants’ contentions on this point, and on December 18, 1964, denied appellants’ petitions for rehearing. Certiorari was denied by the Supreme Court on April 26, 1966, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276. Normally and logically this should have terminated the appellate procedure available to these appellants upon the point raised and considered in their initial direct appeal. In June of 1965, however, we considered the case of Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210. In that case, the appellant’s narcotics conviction was reversed. The court, after balancing the interests presented on the record, decided to order a new trial in exercise of “our supervisory responsibility.” That was because Ross had not been arrested until after a purposeful seven months delay following the date when, as an undercover police officer testified without corroboration, he had purchased narcotics from the accused. The panel of this court which considered Ross affirmatively compared it with our earlier opinion involving our-present appellants and readily distinguished the Ross case from that of the present appellants by setting forth in footnote 4 of the cited Ross opinion that “Hardy did not involve the wholly uncorroborated testimony of an undercover policeman; a paid police informer, who claimed to have been an eyewitness to the sale, testified in support of the Government.” On January 4, 1966, our appellants here filed a motion in the United States District Court pursuant to section 2255 requesting the District Court to vacate and set aside their sentences, again asserting that their sentences were illegal because of an unreasonable delay between their offenses and arrests — which was the ground for their initial appeal to this court — and placing reliance upon our holding in Ross v. United States, swpra, which opinion had, as noted above, been rendered subsequent to the original convictions and appeals. Again, the judge of this court who had originally conducted the trial of the appellants considered their motion and denied it, stating, “ * * * on a full evidentiary record, with the issue of delay in prosecution fully raised, the Court of Appeals affirmed the convictions. Under the circumstances, the motion and the files and records of this case show that the motion must be denied.” Our present appeal stems from that denial. The appellants are currently barred from collaterally attacking their convictions, because the precise issue now raised was fully raised on their direct appeals and disposed of adversely to them. It has been repeatedly held that issues disposed of on appeal from the original judgment of conviction will not be reviewed again under section 2255. Lampe v. United States, 110 U.S.App.D.C. 69, 288 F.2d 881 (1961), cert, denied, 368 U.S. 958, 82 S.Ct. 400, 7 L.Ed.2d 389 (1962); McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1955), cert, denied, 353 U.S. 942, 77 S.Ct. 818, 1 L.Ed.2d 762 (1957); VanBuskirk v. United States, 343 F.2d 158 (6th Cir. 1965); Sykes v. United States, 341 F.2d 104 (8th Cir. 1965); Frye v. United States, 337 F.2d 385 (7th Cir. 1964), cert, denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). This point in itself should be completely dispositive of the appeal in this ease, but my learned brother by his dissenting opinion brings into this case factors which require further comment. Basically, the dissenting opinion proposes that the present panel of this court overrule the prior panel which heard and disposed of the appeal of these appellants on its merit. Obviously, no panel of the court has any right whatsoever to overrule the holdings of another panel of the court. To engage in this process is to bring chaos to the court’s rulings. Were the court to follow this procedure, the decisions of each panel would be valid only on the day of the issuance, and the resulting confusion would obviously destroy the entire value of appellate proceedings. In addition, however, the dissenting opinion suggests that our present panel surmise that the panel which decided the Ross case, supra, did not mean what it said when it, in turn, was interpreting the facts in the Hardy case. Another aspect of the dissenting opinion which causes me concern is that it is predicated upon that writer’s rejection of the trial jury’s evaluation of the credibility of witnesses and formulates judicial policy upon the basis of the appellate judge’s own evaluation of that testimony. Without having seen or heard the testimony of the witnesses, the dissenting judge concludes that some of the testimony has “questionable significance.” Indicative of the reliance upon surmise utilized to strengthen the dissenting opinion is the repetitive use of selected conclusionary phrases describing the evidence in the case as “covered with haze,” “apparently * * * not even clear,” “hectic,” etc. The dissenting opinion states that “probably” the police officer’s service on the street “was a very strained and tense period — a clandestine life made more oppressive by constant fear of exposure and perhaps death.” He would then frankly overrule the jury’s on-the-scene evaluation of the credibility of the police officer and the informer and remand for a further hearing on the question of delay. Finally, he concludes by saying that his “confidence * * * is shattered by other facets of this case which indicate that the police took only scanty precautions to insure that they picked the right defendants”, etc. Words are completely inadequate to emphasize the error of predicating appellate judicial action upon this kind of second-guessing of a jury. Troublesome also is a further collateral problem underlined by the action proposed in the opinion of my dissenting brother. Although this court has gone far beyond the limits of many other appellate courts in assuring to appellants in criminal cases complete and exacting reviews of their convictions, there must— as a matter not only of logic but of sound judicial administration — be some point of termination in the appellate procedure. Were this panel to ignore all judicial precedent and overrule not one but two prior panels of the court, it would, in effect, be by judicial fiat extending the ever-lengthening processes which constitute Perpetual Appeals. It is popular now to publicly decry the huge backlog of criminal cases awaiting trial in our District Court, and yet the procedure proposed in the dissenting opinion would add to the burden of our trial court the necessity for conducting further hearings in this ease and, I suppose, similar cases. True it is, that this court’s basic responsibility is from time to time to remand individual cases to the District Court for further proceedings. These remands, as a matter of law, of sound judicial administration, and of simple efficiency, should be confined to those meritorious cases in which there exists some unresolved substantial question of law or fact. The questions of law and fact raised by the appellants’ present appeal have been resolved against them heretofore by a judge of this court sitting as a trial judge, by a panel of this court sitting in appellate review of the trial court proceedings, by the court considering the case en banc, by at least a basic review by the Supreme Court, as manifested by that Court’s denial of certiorari, and finally by a second panel of this court in distinguishing appellants’ case from that of the defendant Ross, heretofore identified. It does not require the services of efficiency experts, management surveys, or administrative studies to discover that in a case such as this the court is figuratively spinning its wheels by making no forward progress in dealing with the Judiciary’s serious problems of congestion. Affirmed. . “Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction, requires in our view, the reversal of this conviction.” Ross, supra, 121 U.S.App.D.C. at 239, 349 F.2d at 216. . 28 U.S.C. § 2255 (1959). Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus? A. no B. yes, state habeas corpus (criminal) C. yes, federal habeas corpus (criminal) D. yes, federal habeas corpus relating to deportation Answer:
songer_treat	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Appellant, v. James S. DUARDI et al., Appellees. No. 75-1354. United States Court of Appeals, Eighth Circuit. Submitted Sept. 12, 1975. Decided Dec. 31, 1975. Rehearing and Rehearing En Banc Denied March 2, 1976. Gary Cornwell, Special Atty., Dept, of Justice, Kansas City, Mo., for appellant. Lewis E. Pierce, Kansas City, Mo., for appellee. G. Robert Blakey, Ithaca, N. Y., filed brief for amicus curiae, Americans for Effective Law Enforcement. Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and VAN PELT, Senior District Judge. The Honorable Robert Van Pelt, United States Senior District Judge for the District of Nebraska, sitting by designation. ROBERT VAN PELT, Senior District Judge. This case again presents the issue of the proper application of the Dangerous Special Offender Act, 18 U.S.C. § 3575. An earlier panel of this court was confronted with nearly identical issues in United States v. Kelly, 519 F.2d 251 (8th Cir. 1975), and decided the case contrary to the government’s position in Kelly and in this case. We are asked to determine in the instant case 1) whether the government’s original notice seeking sentencing under 18 U.S.C. § 3575 was adequate; 2) whether the district court erred in holding the provisions of 18 U.S.C. §§ 3575 and 3577 to be inconsistent with due process and unconstitutional. In the original notice of November 28, 1972, the government did little more than repeat the language of the statute. The government contends that its notice was sufficient and that the statute does not require the notice to set forth separate reasons supporting both a special offender classification and a dangerous classification. It contends that the requirements of dangerousness as set forth in § 3575(f) can be met with a finding of special offender status under § 3575(e)(3). Any evaluation of the merits of the government’s claim must be made within the limits of Kelly, and since that case, in effect, found against the government on the issue presented, we must affirm the lower court’s finding and hold the notice in this case inadequate. Because our holding is limited to the sufficiency of the notice under this court’s interpretation of § 3575 in Kelly, supra, we do not need to reach, and should not decide, the more important question concerning the constitutionality of the Dangerous Special Offender Act. For the reasons given we affirm. .Now comes the United States, by and through its attorneys, Bert C. Hurn, United States Attorney for the Western District of Missouri, and Gary Cornwell, Special Attorney, United States Department of Justice, who are charged with the prosecution of the above named defendants before the United States District Court for the Western District of Missouri for alleged violations of 18 U.S.C. §§ 371 and 1952, which are felonies committed when the defendants were each over the age of 21 years, and hereby files this notice with the Court, in compliance with the provisions of 18 U.S.C. § 3575(a), stating that upon conviction for said felonies these defendants are each subject to the imposition of sentences under 18 U.S.C. § 3575(b) as dangerous special offenders. We do believe that said defendants are dangerous special offenders for the reason that such felonies constituted, and were committed by defendants in furtherance of a conspiracy with three or more persons to engage in a pattern of conduct criminal under the laws of the United States, and the State of Oklahoma, and the defendants agreed to and did organize, plan, finance, direct, manage and supervise all or part of such illegal conduct and activities, and agreed to give and receive a bribe and to use force as part of such conduct, all within the meaning of § 3573 [sic] (e)(3) of Title 18, United States Code. . (f) A defendant is dangerous for purposes of this section if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant. . (e) A defendant is a special offender for purposes of this section if— ****** (3) such felony was, or the defendant committed such felony in furtherance of, a conspiracy with three or more other persons to engage in a pattern of conduct criminal under applicable laws of any jurisdiction, and the defendant did, or agreed that he would, initiate, organize, plan, finance, direct, manage, or supervise all or part of such conspiracy or conduct, or give or receive a bribe or use force as all or part of such conduct. . The writer of this opinion, if, to borrow a recent expression of Judge Heaney of this court, he could “write on a clean slate,” would not subscribe to the conclusions of Kelly. It is an approved practice as to most indictments to charge a crime in the language of the statute and defendants are then afforded rights to a bill of particulars. Coupling these facts with the broad alternatives available to the court under 18 U.S.C. § 3575 in holding a hearing and sentencing, the writer would vote to hold the notice sufficient. 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_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. Roy A. JOHNSON and John J. Sheller, Plaintiffs-Appellants, v. Verne ORR, Secretary of the Air Force, Francis Erard, Major General, Wilfred C. Menard, Jr., Major General, Colonel John Murphy, Brigadier General Charles Young, Air Commander Lt. Colonel Billy McDaniels, Defendants-Appellees. No. 89-5315. United States Court of Appeals, Third Circuit. Argued Oct. 20, 1989. Decided March 1, 1990. Martin R. Cohen (argued), American Federation of Government Employees, Philadelphia, Pa., Mark D. Roth, American Federation of Government Employees, AFL-CIO, Washington, D.C., for plaintiffs-appellants. Bette E. Uhrmacher (argued), Asst. U.S. Atty., Trenton, N.J., for defendants-appel-lees. Before BECKER, COWEN, and SEITZ, Circuit Judges. SEITZ, Circuit Judge. This is the decision on defendants' motion to dismiss plaintiffs’ appeal from a district court order granting plaintiffs allegedly inadequate attorneys’ fees on the ground that the notice of appeal is untimely. The extensive history of this case is recounted in two earlier opinions of this court. Johnson v. Orr, 780 F.2d 386 (3d Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 107, 93 L.Ed.2d 56 (1986); Johnson v. Orr, 716 F.2d 75 (3d Cir.1985). We will repeat only those facts necessary to an understanding of the issues raised by defendants’ motion. Plaintiffs Roy A. Johnson and John J. Sheller (“plaintiffs”) were civilian technicians employed by the New Jersey Air National Guard. They were discharged from their positions for labor activities alleged to be in violation of federal law. In an administrative hearing, the dismissals were upheld by an Air National Guard hearing examiner, whose findings were in turn adopted by the New Jersey Adjutant General. Thereafter, plaintiffs filed a complaint in the district court containing three claims: 1) improper discharge in violation of the first and fifth amendments to the United States Constitution, the Bivens claims 2) improper discharge in violation of the provisions of the Administrative Procedure Act (APA) and 3) other constitutional violations remediable under 42 U.S.C. § 1983 (1982). The district court dismissed the first of these claims, the Bivens claims, in December of 1983. On July 2, 1984, the district court granted summary judgment for plaintiffs on their APA claim. The so-called § 1983 claim remained undecided. Defendants moved to have the order granting summary judgment on the APA claim made final pursuant to Federal Rule of Civil Procedure 54(b). This the district court did by order dated October 24, 1985. The defendants then appealed the summary judgment on the APA claim and that judgment was affirmed by this court. Johnson v. Orr, 776 F.2d 75 (3d Cir.1985). After the judgment on the APA claim became final in December 1986, plaintiffs renewed their motion in the district court for costs and attorneys’ fees on that judgment. Upon receipt of the Report and Recommendation of the United States Magistrate, the district court entered an order awarding plaintiffs certain fees and costs, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982 & Supp.1987). The order was docketed on April 11, 1988. At this point in time, April 11, 1988, plaintiffs’ § 1983 claim remained viable in the district court. We come next to the critical events relevant to the disposition of the pending motion to dismiss. The plaintiffs did not file a notice of appeal within sixty days after the April 11, 1988, fee order was docketed. See Fed.R.Civ.P. 4 (where government is a party notice of appeal must be filed within sixty days). Rather, after negotiation, the parties settled the § 1983 claim and the court entered an order dated April 3, 1989, dismissing the amended complaint with prejudice. On April 10, 1989, plaintiffs filed a notice of appeal from the district court’s fee order that had been docketed April 11, 1988. It is the timeliness of this notice of appeal that we must determine. The issue is more simply stated than resolved. The district court’s judgment for plaintiffs on the APA claim had been appealed and had become final in December 1986. The order fixing the fees and costs with respect to that judgment was docketed on April 11, 1988. Since the fees and costs were based solely on a final judgment, we must decide whether the order fixing such fees and costs likewise became final and thus triggered the running of the time for appeal. Defendants contend quite simply that the fee order was a final judgment for appeal purposes. Plaintiffs counter that the fact that a final judgment existed with respect to the APA claim, did not render the subsequent fee order final because the § 1983 claim remained outstanding. Generally speaking, an order unconditionally fixing fees, docketed after the docketing of the final merits judgment, is a separate final judgment, at least where the merits judgment resolved all of the claims before the district court. Such a conclusion is implicit in some of the Supreme Court’s analysis in White v. New Hampshire Dep’t of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Indeed, this proposition seems not to be challenged here. Plaintiffs say the rule is otherwise, however, where other claims remain unresolved and there is no 54(b) certification of the fee order. An analysis of our problem must begin with a recital of certain federal law relating to 54(b) final judgments. Generally speaking, a judgment entered pursuant to Rule 54(b) has the same finality as any other judgment. See, e.g., Hayes v. Sealtest Foods Div. of Nat’l Dairy Prods. Corp., 396 F.2d 448 (3d Cir.1968) (recognizing that after a Rule 54(b) certification and the entry of a final judgment, the time for appeal begins to run); Government of Virgin Islands v. 2.6912 Acres of Land, 396 F.2d 3 (3d Cir.1968) (finding that failure to certify judgment under Rule 54(b) precludes res judicata effect); Hooks v. Washington Sheraton Corp., 642 F.2d 614 (D.C. Cir.1980) (stating that after Rule 54(b) order, judgment begins to accumulate interest); Redding & Co. v. Russwine Constr. Corp., 417 F.2d 721 (D.C.Cir.1969) (stating that Rule 54(b) has implications as to a judgment’s finality for purposes of execution). Thus, certification of a judgment under Rule 54(b) triggers, subject to review, all of the direct consequences of any final judgment. While plaintiffs would, of course, agree that the district court was authorized to fix attorneys’ fees, they insist that the fee order, unlike the merits judgment, was not a final judgment when entered because of the existence of the § 1983 claim. Such a result would follow in the absence of a certification of the merits judgment where claims remained undecided. But does plaintiffs’ position clash with the basic purpose behind the adoption of the Rule 54(b) provision permitting a district court to render a judgment final while other claims remain pending? The factors that motivated the adoption of the certification provision in Rule 54(b) are clear: Rule 54(b) is designed to facilitate the entry of judgments upon one or more but fewer than all the claims or as to one or more but fewer than all the parties in an action involving more than one claim or party. It was adopted because of the potential scope and complexity of civil actions under the federal rules, given their extensive provisions for the liberal joinder of claims and parties. The basic purpose of Rule 54(b) is to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available. [footnote omitted] 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2654 (2d ed. 1983). Attorneys’ fees are, of course, collateral to the main cause of action. White, 455 U.S. 445 at p. 451, 102 S.Ct. 1162 at p. 1166. However, when the judgment on the fees is rendered after the entry of final judgment on the merits pursuant to Rule 54(b), is there any policy reason why the court’s decision to render the merits judgment final should not carry over to the fee determination thereon solely because of the existence of another claim? If plaintiffs are correct, the fee order of the district court docketed on April 11, 1988, lacked finality and thus could not have been appealed at that time by either side without a certification. Such a result could materially delay the finality of a frequently not unimportant aspect of a favorable judgment on the merits — attorneys’ fees. Moreover, since a 54(b) certification indicates that the district court believes the merits judgment should become final immediately, we can think of no policy consideration that would suggest that a separate fee award on that judgment should not also be final. This is even more true when, as here, the certified merits judgment has already been affirmed on appeal. Assuredly, the very purpose served by a certification of finality suggests the importance of making final all of its collateral consequences. Plaintiffs contend that the legal fees award was not appealable because there was no express Rule 54(b) determination as to the fees and costs claims. The contention implies that such an express determination of finality was necessary. Of course, the certification would only be necessary if the attorneys’ fee order were to be viewed as not being a final judgment. Our determination to the contrary negates this argument. Plaintiffs assert that this court’s decision in Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778 (3d Cir.1982), requires us to find this fee order unappeala-ble until the entire complaint was dismissed. However, that case is not controlling. Yakowicz ruled that an order denying interim attorneys’ fees was not final and appealable. Here, in contrast, the final assessment of fees was based on a final judgment. Finally, plaintiffs rely on certain actions of the parties to suggest that they understood the fee order of April 11, 1988, not to be a final judgment. Finality of a judgment for appeal purposes presents a jurisdictional issue for our determination. As a consequence, plaintiffs’ understanding as to the finality of the order is irrelevant. We conclude that the fee order of April 11, 1988, was itself a final judgment under the circumstances. We will therefore grant defendants’ motion to dismiss plaintiffs’ appeal as untimely. . The earlier motion was not acted on at the time of the certification of the judgment on the APA claim. 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_counsel2	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. 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 Carl Edwin CASE, Petitioner-Appellee, Cross-Appellant, v. Eloy MONDRAGON, Warden, Southern New Mexico Correctional Facility, Respondent-Appellant, Cross-Appellee, and Attorney General of the State of New Mexico, Respondent. Nos. 88-1685, 88-1748. United States Court of Appeals, Tenth Circuit. Oct. 25, 1989. Peter Schoenburg, Asst. Federal Defender, Albuquerque, N.M., for petitioner-appel-lee, cross-appellant. William McEuen, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him on the briefs) Santa Fe, N.M., for respondent-appellant, cross-appellee. Before LOGAN, SETH and ANDERSON, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. Petitioner, Carl Edwin Case, was tried in state court and convicted on a jury verdict of felony murder and criminal sexual penetration in the first degree. Following an unsuccessful state appeal Case sought federal habeas relief. The district court conditionally granted Case’s petition on one ground, and denied relief on another. Both parties have appealed. The issue upon which Case prevailed involves an allegation of jury misconduct. Case asserts that the state trial court violated his constitutional rights when it refused to question the jury after its verdict, with respect to allegations of internal jury misconduct “and/or” improper external influence. Case’s Answer and Reply Brief at 2. Those allegations arose from evidence that one or more jurors crossing the street to the parking lot after the last full day of trial may have either said or heard the following two comments: “[tjhat little gal [a state rebuttal witness] was lying on the stand this afternoon, that was obvious;” and “[h]e will be found guilty, there is no other way it can go.” The second issue arises from the state trial court’s denial of a continuance toward the end of the trial to enable the defense to bring in a newly-discovered witness. The witness supposedly would testify to having seen the victim several days after the date upon which the murder was charged to have occurred. The district court referred Case’s petition to the United States Magistrate for recommended findings and disposition. Based solely upon his review of the state court record, the magistrate determined that by refusing to hold a hearing at which the jurors could be examined, the state trial court “effectively denied Petitioner the opportunity to present his claim of bias and prejudice,” thus inflicting “a wrong of federal constitutional dimension.” Following a hearing at which the missing witness testified, the magistrate found against Case on the continuance issue. The magistrate recommended that Case’s petition be granted unless the state retried him within 120 days. The district court adopted the magistrate’s recommendations and entered judgment accordingly. We reverse on the jury misconduct issue, and affirm on the continuance issue. I. JUROR MISCONDUCT ISSUE A. Background. The guilt phase of Case’s trial lasted five and one-half trial days, beginning Tuesday, October 19, 1982 and ending at midday on Tuesday, October 26, 1982. The alleged incident of juror misconduct occurred Monday afternoon, October 25, apparently after court had recessed for the day. However, it did not come to light until after the guilt phase of Case’s trial had concluded and the jury had returned a guilty verdict. Deloris Reich, an individual unconnected with the trial, testified that between 4:20 p.m. and 4:40 p.m. Monday afternoon she observed “maybe a few” more than twelve people, in various groupings, cross the street during a period spanning a few minutes. R.Vol. XI at 2236, 2238, 2243-44. At another point Reich stated that “people started coming across the street, quite a few people. I don’t have any idea how many. They just kept coming.” R.Vol. X at 1902. They were crossing from the direction of the courthouse toward the vicinity where the jurors’ cars were parked. R.Vol. XI at 2249-50. After viewing the jury the following day Reich was able to state positively that at least some members of the jury were among the people she observed crossing the street. R.Vol. X at 1903-07, 1911; R.Vol. XI at 2236-37. As one group consisting of three or four men passed, Reich heard one of them say “[t]hat little gal was lying on the stand this afternoon, that was obvious.” R.Vol. X at 1902; R.Vol. XI at 2237. At the time Reich’s back was turned to the group and her attention was directed to her daughter who was in a parked vehicle, and with whom Reich had been conversing. Thus, Reich was not able to state who made the remark or who was in a position to hear it. R.Vol. X at 1902-03; R.Vol. XI at 2245. A few minutes later as Reich was crossing the street to get to her own vehicle she passed two women, one of whom was heard by Reich to remark “[h]e will be found guilty, there is no other way it can go.” R.Vol. X at 1908; R.Vol. XI at 2238. Reich’s back was to the women when the remark was made, R.Vol. XI at 2246, and her attention was directed toward getting across the street. R.Vol. X at 1908. However, she turned upon hearing the remark and looked at the women, observing the side of one woman’s face. R.Vol. XI at 2246. Reich testified “I will not and cannot swear that the lady on the jury is the one that said those words, nor a man on the jury said those words.” R.Vol. X at 1911. However, as indicated, Reich was firm in her conclusion that jurors were among those crossing the street, and she felt that the two ladies, one of whom made the remark in question, were members of the jury, but simply was unable to say “for absolutely sure.” R.Vol. XI at 2248-49. She expressed similar feelings with respect to at least one of the men in the group from which the other remark in question had been heard. Id. Reich, who was aware that a trial was going on, thought the two remarks in question were odd, R.Vol. X at 1914, R.Vol. XI at 2246, but did nothing about the matter until the following day, Tuesday, when she called Pam Thompson, a radio reporter friend of hers. Reich asked Thompson about the trial and was told that the jury had found Case guilty. Reich told Thompson she was not surprised by a guilty verdict “because of what I heard.” R.Vol. XI at 2247. The sentencing phase of Case’s trial commenced the following day, Wednesday, October 27. Apparently Thompson had Reich come to the courthouse that morning to see if she could identify members of the jury as those whom Reich had observed crossing the street. Reich was able to identify at least eight of the jurors (inclusive of the two alternates). R.Vol. X at 1907. Thompson then broadcast an account of what Reich had overheard. The matter came to the attention of Case’s counsel, who brought it up with the trial court immediately following the noon recess that same day. The court informed counsel that he had learned of the incident the previous evening, and had spoken to Reich on the telephone, but decided not to pursue the matter when Reich stated that she did not know if any jurors were involved. Since Reich had purportedly identified some of the jurors that morning the trial court permitted representatives of the two sides to go to Reich’s home to record an interview with her. R.Vol. X at 1900. A motion by defense counsel for an immediate voir dire of the still-impaneled jury was denied. At 3:30 p.m. that same afternoon, Wednesday, October 27, one of Case’s counsel, and an investigator for the state, returned to court with a tape of an interview with Reich in which she substantially recounted the events already described. The tape was played to the court and counsel in chambers. Case’s counsel then moved again for a voir dire of the jury and the motion was once again denied. R.Vol. X at 1917. The following afternoon, Thursday, October 28, after the jury had retired to deliberate on Case’s sentence, the trial court held an evidentiary hearing on the jury misconduct issue. As the following exchange between the court and Case’s counsel indicates, the defense was not limited in any way as to what it could present in that hearing, with the exception of a voir dire of the jury: “MR. MITCHELL: ... And I think the first thing that comes first is presenting whatever evidence I may have in that regard, Your Honor, in addition to what was submitted to the Court yesterday on the record [referring to the tape recording of Reich’s interview.] THE COURT: I’ll be frank with you, nothing was submitted to the Court yesterday insofar as I could tell. But you may submit any other evidence. And I told you at that time you could.” R.Vol. XI at 2231 (emphasis added). Case’s counsel then produced Reich, who was examined and cross-examined under oath in open court, generally repeating what she had stated in the recorded interview. No other evidence was proffered. At the conclusion of the hearing Case’s counsel moved in the alternative for a mistrial on the ground of jury misconduct, and, for the third time, that permission be granted to voir dire the jury because of the evidence presented by Reich. Both motions were denied without explanation, R.Vol. XI at 2250, although the trial court had explained at the outset of the eviden-tiary hearing that: “THE COURT: I’m willing to listen to see if there was jury misconduct. And if there is jury misconduct and you can prove it to the Court, you are entitled, depending on when it occured, [sic] to a new trial, maybe to a new sentencing hearing. I don’t know.” R.Vol. XI at 2232-33. See also R.Vol. IX at 1818-20. And, earlier, the court stated: “But this is the way the lady sounded to me, and it just — we don’t know how many people are crossing the street.... She doesn’t know anything about this as to who said what to whom, and there isn’t any sense in pushing it.” R.Vol. X at 1917 (emphasis added). Thus, it is a fair inference that the trial court found no factual basis for the claim of juror misconduct sufficient to justify a voir dire of the jurors. Following the evidentiary hearing and the denial of Case’s motions to interrogate the jury or for a mistrial, the jury was brought back into the courtroom and announced their verdict that Case not suffer the death penalty. R.Vol. XI at 2252. The court then pronounced sentence and the jury was discharged. On appeal to the New Mexico Supreme Court the issue was stated as whether “the trial court abused its discretion by refusing to declare a mistrial or voir dire jurors following an allegation of juror misconduct.” State v. Case, 676 P.2d at 246. The court declared the standard to be: “If there is no evidence of probable juror impropriety, the trial court does not abuse its discretion by refusing to voir dire the jury.” Id. The court made the following findings with respect to Reich’s testimony: “A review of the record indicates that Reich was crossing the street with a group of people when she overheard the remarks but that she had no idea who made the remarks.... [S]he would not say positively that any comment she overheard was made by a juror or overheard by members of the jury. She admitted that she could not say that any juror said anything.... Reich was equivocal as she could not say that any juror made or heard the remarks in question." State v. Case, 676 P.2d at 246-47 (emphasis added). Based on its findings, the Supreme Court concluded: “There was insufficient proof of juror misconduct to overcome the presumption that the jury obeyed its instructions. We therefore find that the trial court did not abuse its discretion by refusing to voir dire the jury, nor by denying a motion for mistrial.” Id. at 247. Case’s initial appeal to this court was remanded to the United States District Court (Nos. 85-2937 and 86-1042, unpublished, March 6, 1987), for an evidentiary hearing at which either party could supplement the record on the jury misconduct issue. A hearing was held, but neither Case nor the state offered anything further. Thus, Case’s claim stands solely on the state court record and findings. B. Discussion. Our review of the district court’s decision centers on the effect and the deference, if any, to be accorded to the findings of the state courts. The magistrate’s report, adopted by the district court, omitted any discussion of the state court findings. The state argues that the district court improperly failed to accord a presumption of correctness to those findings. Case contends that his petition presents only a constitutional question of law, or one of mixed fact and law, requiring a de novo review of the record. More particularly, Case argues that the issue requires an independent federal review to determine whether there was sufficient evidence to compel a voir dire of the jurors: “The issue in this case is not whether the jury was biased or even whether jury misconduct occurred but rather whether there was sufficient evidence of jury misconduct and the prejudicial nature of that misconduct to mandate voir dire of the jury on that subject. The ultimate issue of what amount of evidence is enough to require under the federal constitution an inquiry of the jurors is a question of law.” Case’s Answer and Reply Brief at 12-13. Sufficiency of the evidence can be considered to be a mixed question of law and fact. See Graham v. Wilson, 828 F.2d 656, 659 (10th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988); Herring v. Blankenship, 662 F.Supp. 557, 565 (W.D.Va.1987). Thus, according to Case, the state court findings are entitled to no deference. The general rules are not in doubt. Explicit and implicit findings by state trial and appellate courts “shall be presumed to be correct,” 28 U.S.C. § 2254(d), unless one of seven factors listed in section 2254(d) are present, or the federal court concludes that the state court findings are not fairly supported by the record. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Sumner v. Mata (Sumner I), 449 U.S. 539, 545-47, 550, 101 S.Ct. 764, 768-769, 770, 66 L.Ed.2d 722 (1981); Baca v. Sullivan, 821 F.2d 1480, 1482 (10th Cir.1987); Bedford v. Smith, 543 F.2d 726, 729-30 (10th Cir.1976). The presumption applies to basic, primary, or historical facts and the inferences that can properly be drawn regarding them. Marshall v. Lonberger, 459 U.S. at 431-32, 103 S.Ct. at 849-50; Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) (“ ‘[I]ssues of fact’ refers ‘to what are termed basic, primary, or historical facts: facts “in the sense of a recital of external events and the credibility of their narrators ”(emphasis added) (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963))); Phillips v. Murphy, 796 F.2d 1303, 1306 (10th Cir.1986). No presumption of correctness attaches to legal conclusions or determinations on mixed questions of law and fact. Those are reviewed de novo on federal habeas review. Sumner v. Mata (Sumner II), 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982); Chaney v. Brown, 730 F.2d 1334, 1346 (10th Cir.1984). However, the presumption of correctness will continue to apply to any findings of fact underlying mixed questions, typically “ultimate” constitutional issues such as due process. Marshall v. Lonberger, 459 U.S. at 431-32, 103 S.Ct. at 849-50; Sumner II, 455 U.S. at 597, 102 S.Ct. at 1306; Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir.), cert. denied, — U.S. -, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989); Hunt v. Oklahoma, 683 F.2d 1305, 1309 (10th Cir.1982). This will even be the case when, as here, those findings might resolve or dispose of the “ultimate” mixed question. See, e.g., Baca v. Sullivan, 821 F.2d at 1482; Phillips v. Murphy, 796 F.2d at 1306. In the broadest terms, the issue presented here is whether Case’s due process rights were infringed when the trial court refused permission to voir dire the jury regarding the alleged juror misconduct. This ultimate issue of due process is a mixed question of law and fact. Cf. Chaney, 730 F.2d at 1346; Hunt, 683 F.2d at 1309. Thus, the section 2254(d) presumption does not apply to this ultimate issue. However, whether or not the jurors made or heard the comments in question is unquestionably a matter of basic, primary, or historical fact. See Rushen v. Spain, 464 U.S. at 120, 104 S.Ct. at 456. That is especially true where, as here, the fact determination necessarily included an evaluation of the demeanor and credibility of the sole witness, Deloris Reich. Questions of witness credibility are usually considered to be issues of fact. See Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953). The state trial court was in a far better position than any other tribunal to assess the credibility of Reich, having taken her live testimony. Such practical considerations are relevant to distinguishing issues of fact and law. As the Supreme Court suggested in Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985): “[T]he decision to label an issue a ‘question of law/ a ‘question of fact/ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation as it is of analysis. [Citation omitted]. At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” See also Graham v. Wilson, 828 F.2d 656, 659 (10th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988). As our summary of the record discloses, the state courts both explicitly and implicitly determined that at best Reich’s testimony was equivocal and uncertain. “[S]he could not say that any juror made or heard the remarks in question.” State v. Case, 676 P.2d at 247. Case urges that the testimony was enough to trigger a constitutional requirement for further investigation by way of a voir dire of the jurors. We disagree. Giving full deference to the state’s findings, Reich’s testimony supports nothing more than speculation and conjecture. No constitutional duty to resort to the drastic step of a post-verdict voir dire of a jury can arise on evidence which raises nothing more than a mere possibility of misconduct. See Tanner v. United States, 483 U.S. 107, 126, 107 S.Ct. 2739, 2750, 97 L.Ed.2d 90 (1987). Although Case invokes virtually all of the exceptions to the presumption of correctness under 28 U.S.C. § 2254(d), we conclude that none apply. Other than the fact that the trial judge declined to voir dire the jurors regarding the alleged misconduct, Case can identify absolutely no shortcomings in the procedure by which the material facts were investigated, developed, and resolved. The judge gave Case every opportunity to investigate the incident, using nonjuror sources. Case received a full, fair, and adequate evidentiary hearing to present his arguments. After hearing all the testimony and arguments presented on the issue, the trial judge ruled against Case on the merits, and that was affirmed by the state supreme court. On federal habeas review Case was given a further chance to present evidence on the jury misconduct issue and chose not to do so. With respect to the final exception under section 2254(d), despite Case’s argument to the contrary, our independent review of the state court record satisfies us that the factual determinations by the state courts are “fairly supported.” In short, no section 2254(d) exception applies to diminish or avoid the statutory presumption of correctness which we must accord to the state court findings. Finally, if a federal court seeks to avoid the presumption under one of these eight exceptions, it must explain its reasons in writing. Sumner I, 449 U.S. at 551, 101 S.Ct. at 771 (“[W]e now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was ‘not fairly supported by the record.’ ”). The federal magistrate failed to explain clearly, as required by Sumner I, the reasons why he chose to overlook the section 2254(d) presumption. In fact, no reference to section 2254(d) is made at all. Even assuming the magistrate did consciously consider the import of section 2254(d) but found the presumption not to apply because of one of the enumerated exceptions, we are unsure which exception the magistrate intended. We do not believe the magistrate’s findings, adopted by the district court, fulfilled the directives of Sumner I, and Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). According the full presumption of correctness to the state court findings on the basic and primary facts from which this issue arises we cannot conclude that the state trial court violated Case’s constitutional rights when it refused to conduct a post-verdict voir dire of the jury. The district court’s decision to the contrary, and which failed to set forth reasons why the presumption of correctness should not apply, is erroneous. II. In his petition to the district court Case also alleged that he was denied his right to present evidence in his own defense when he was denied a continuance to obtain the testimony of a witness, Michelle Kent, who was alleged to have seen the victim a few days after the date upon which the victim was supposed to have been murdered. After a hearing at which Ms. Kent testified, the magistrate concluded that Kent’s tentative identification testimony would not have been sufficient to create a reasonable doubt that did not otherwise exist in the minds of the jurors. Therefore, Case was not materially prejudiced by the trial court’s refusal to grant a continuance. The district court adopted the magistrate’s recommendation, and denied Case’s petition on this issue. As previously indicated, the guilt phase of Case’s trial began on Tuesday, October 19, 1982, and concluded at midday on Tuesday, October 26, 1982. On Friday afternoon, October 22, 1982, during the case-in-chief for the defense, Case’s counsel learned that a woman may have seen the victim alive after the date upon which she was alleged to have been murdered. Counsel represented to the court that the witness, who turned out to be Michelle Kent, was unavailable and that counsel did not know her whereabouts, although an investigator was attempting to find out that information. Case’s counsel then stated to the court: “I doubt very seriously the Court would grant us a continuance to find this particular witness. If the Court is going to grant us a continuance, that is great and I would move for one on this particular witness, but the declarant is un-available_ We have been unable to locate her.” R.Vol. VII at 1355. A second request for a continuance was made the following Monday, after the defense had rested and the state had completed its rebuttal. R.Vol. VIII at 1573-75. Case’s counsel represented to the court at that time that Michelle Kent had been located, and he moved for a continuance, “to rent a plane, or whatever, to fly that girl back out here so I can put her on the stand.” R.Vol. VIII at 1574. Counsel then made a proffer that Kent would testify “she did see the victim on the sixth day of January, five days after her alleged murder, and that the victim was alive and well, and that Kent did recognize her.” Id. The state objected on the ground, among other things, “that the defense was asking for an opportunity to reopen its case.” Id. at 1575. The court thereafter denied the motion for a continuance. The third request for a continuance came the next day, midway through surre-buttal. At that time defense counsel was still seeking time to prepare a witness certificate. R.Vol. VIII at 1613-15. The trial judge again denied the motion and stated that if the defense had spent as much time investigating as they had in filing thirty motions right before the trial they might have found the witness sooner. R.Vol. VIII at 1616. Kent testified at the hearing on this issue before the United States Magistrate. She stated that she knew the victim, Nancy Mitchell, pretty well, having gone to school with her during the several months prior to her death. Kent and Mitchell were two of the eight cheerleaders for the school, practicing together daily, and traveling together to football games at least once a week. In addition, Mitchell had taken Kent home “a lot of times,” and Kent visited the Mitchell home on two or three occasions. Kent further testified that Mitchell had “real blonde, blonde hair and it was real straight.” She also described it as “white, real white.” EHT at 11. With respect to the incident in question, Kent testified that a few days, maybe a week, after January 1, 1982, she saw a woman whom she believed to be Nancy Mitchell. On that occasion, Kent was standing with Tammie Simmons in front of her house on the west side of Halgaino, three houses south of Church Street, a four lane roadway. The two women heard someone honk a car horn. They looked in the direction of the noise. Kent saw a person for a few seconds at least 100 feet away, driving a blue car, which was moving onto Church Street from the drive-through at the Pizza Mill, which was located on the northeast corner of the intersection. The woman driving the car waved. And, she turned herself towards Kent such that Kent could see her hair and part of her face. Kent testified: “[W]e heard someone honk and we looked and she was waving, and she had blonde hair, and it looked like her, I am not for sure it was, but it looked like her, and she was waving at us, so I said, ‘Look, there is Nancy’ or ‘It looks like Nancy’ because she was missing no one had seen her, and so we waved.” EHT at 10. Kent acknowledged that Mitchell’s car was a gold Camaro, not the blue car which Kent observed. EHT at 15. After listening to Kent’s testimony, and observing her demeanor on the witness stand, the magistrate found that Kent’s testimony was equivocal, and called attention to the following excerpt from Kent’s testimony: “Q. Now, Ms. Kent, you are not at all sure this was Nancy Mitchell, are you? A. It looked like her. I don’t know if it was or not. Q. You don’t know if it was or not? A. No. Q. It could have been someone else? A. It could have been. Q. You are uncertain as to whether it was Nancy Mitchell or not? A. Uh-huh. Q. Have you ever told anyone you were positive it was Nancy Mitchell? A. No. Transcript at 20-21. On re-direct examination, Kent responded as follows: Q. How well do you know Nancy Mitchell? A. Pretty well. Q. Okay. And you saw this person, you saw her hair and at least half of her face; is that right? A. Uh-huh. Q. Okay. Let me put it this way: Would you say that you were pretty sure that it was Nancy Mitchell. A. It looked a lot like her. Transcript at 24.” Amended Magistrate’s Proposed Findings and Recommended Disposition at 3-4. With respect to cases on direct appeal, we review the district court’s decision to deny a continuance for abuse of discretion, and do not reverse unless we conclude that the denial was arbitrary or unreasonable and materially prejudiced the appellant. See United States v. West, 828 F.2d 1468, 1469 (10th Cir.1987). In West, we stated that “[t]he determination whether ‘the denial of a continuance constitutes an abuse of discretion turns largely upon the circumstances of the individual case.’ ” Id. at 1469-70 (quoting United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.1985)). We thereafter listed several factors which may be considered in determining whether a denial of a continuance is arbitrary and unreasonable, including: “the diligence of the party requesting the continuance; the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; a need asserted for the continuance and the harm that appellant might suffer as a result of the district court’s denial of the continuance. No single factor is determinative and the weight given to any one may vary, depending on the extent of the appellant’s showing on the others.” United States v. West, 828 F.2d at 1470 (citations omitted). However, when a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion, but “it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.” Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981). See Nieto v. Sullivan, 879 F.2d 743, 749 (10th Cir.1989) (“The standard that governs in a habeas proceeding ‘is “the narrow one of due process, and not the broad exercise of supervisory power.” ’ ” (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting in turn Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)))). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964). The parties devote a great deal of argument to questions relating to the diligence of Case’s counsel, usefulness of the continuance, inconvenience, and other factors listed in West. However, we must focus on Case’s need for a continuance and the prejudice or lack of prejudice resulting from its denial, in the context of a fundamental fairness evaluation. We have read the entire record in this case and are convinced that the trial court’s denial of a continuance did not undermine the fundamental fairness of Case’s trial. Case argues that Kent’s testimony was unique and absolutely fundamental to his defense. Although he was able to present two other witnesses, a husband and wife, who stated that they had seen the victim, Mitchell, at a party on a date subsequent to the alleged 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_respond1_1_3	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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Joel J. TARTELL, Appellant, v. CHELSEA NATIONAL BANK, Appellee. No. 156, Docket 72-1665. United States Court of Appeals, Second Circuit. Argued Nov. 15, 1972. Decided Nov. 15, 1972. Harold L. Young, New York City (Young, Sonnenfeld & Busner, New York City, on the brief), for appellant. Jerome J. Londin, New York City (Carro, Spanbock & Londin, Kenneth A. Lapatine, New York City, on the brief), for appellee. Before SMITH, KAUFMAN and MULLIGAN, Circuit Judges. PER CURIAM: The judgment is affirmed essentially for the reasons stated in Judge Tyler’s opinion below. 351 F.Supp. 1071. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. WILSON v. HARBURNEY OIL CO. et al. No. 1470. Circuit Court of Appeals, Tenth Circuit. March 24, 1937. Robert C. Foulston, George Siefkin, Sidney L. Foulston, Lester L. Morris,George B. Powers, Carl T. Smith, and C. H. Morris, all of Wichita, Kan., for appellant. L. P. Brooks, of Wichita, Kan., for ap-pellees. Before PHILLIPS, and BRATTON, Circuit Judges, and JOHNSON, District Judge. BRATTON, Circuit Judge. H. J. Wilson complains because his claim submitted in a proceeding in bankruptcy was disallowed. The Harburney Oil Company filed a voluntary petition under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). It was approved and a trustee appointed. These facts were set forth in the claim with its attached exhibits: On January 18, 1934, claimant secured a mineral lease from Sophia Wendel and others — called the Wendel heirs — covering the east half of section 32, in township 19 south of range 10 west, in Rice county, Kan. By a written contract which accompanied the lease, he was required to begin drilling within a fixed time and to prosecute it diligently to the siliceous sand unless oil or gas in commercial quantities was found at a lesser depth. The lessors were to be paid $6,000 from one-fourth of the claimant’s share of the first oil produced. Claimant and four others — Burton, Harris, Harvey, and Kors — thereafter entered into an undated contract which recited that they were jointly interested in the leasehold estate in the west half of the northeast quarter of section 32, each owning an undivided one-fifth interest therein. They bound themselves to cause a corporation to be organized under the laws of Kansas for the purpose of owning the lease and conducting developments. Each was to assign his interest in the lease to the corporation and to receive therefor a certificate or certificates equal to 20 per cent, of the total number of shares of the capital stock. It was provided that the corporation would begin drilling on or before July 20, 1934, and continue with diligence to the siliceous lime unless oil or gas in commercial quantities was found at a lesser depth; that it would comply in all respects with the Wendel contract, a copy of which was attached; that it would pay claimant $3,000 in cash and a further sum of $3,000 on or before the time the well reached a depth of 2,500 feet; and that it would pay a further sum of $10,000 from one-fourth of the first oil produced, $6,000 to the Wendel heirs and $4,000 to claimant. Claimant and his four associates, each owning an undivided one-fifth interest in oil and gas leases covering 400 acres of land, entered into mutually satisfactory adjustments and agreements in which claimant released and surrendered his interest in 320 acres of such leasehold estate, including that which was subsequently transferred to the corporation, and the other four released and transferred to him their interests in the remaining 80 acres. It was mutually understood in connection with such .transfers that the obligation of the corporation and of the four associates to make the payments required by the terms of the original contract which claimant and his associates entered into should be unaffected. The corporation was “formed and the lease covering the west half of the northeast quarter of section 32 was transferred to it. The transfer was subject to all of. the obligations and liabilities contained in the contract between claimant and his four associates; and the corporation had knowledge of such facts at the time the transfer was made to it. The first $3,000 was paid to claimant before the corporation was formed;' but subsequent to its formation and in recognition of the obligation, the corporation paid or caused to be paid $100 to claimant on the $3,000 which was due when the well reached a depth of 2,500 feet; and from time to time it paid $10,000 out of oil produced on the leased premises in accordance with the terms of such contract. Harvey, as promoter and president of the corporation, agreed and promised repeatedly to pay claimant the balance of $2,900 on the $3,000 obligation, but such payment was never made and the claim was for that amount. The corporation and the trustee joined in an answer which challenged the sufficiency of the facts to constitute a valid claim, and further that the asserted claim was within the statute of frauds. The court entered an order disallowing the claim because the facts alleged were not sufficient to state a cause of action. Claimant appealed. The first question which the parties discuss in their briefs is whether the corporation was bound by the contract which the preorganization promoters executed. The challenge to the claim was in effect a demurrer and,, therefore, all matters well pleaded were admitted. Fairly construed, the claim alleged that claimant and his four associates were preorganizers of the corporation; that their contract providing that the lease should be assigned to the corporation, was for the benefit of the corporation; that the lease was transferred subject to all of the obligations and liabilities contained in the agreement; that the corporation developed the premises; that in recognition of its obligation under the contract, the corporation paid $10,000 out of oil produced, of which $6,000 went to the Wendel heirs and $4,000 to claimant; and that it has paid or caused to be paid $100 on the item of $3,000. It is the balance of that item for which the claim is made. A corporation may expressly or impliedly assume the obligations of a contract which its promoters made for its benefit prior to the date of its organization; and any unequivocal act of recognition will suffice for that purpose. Here the corporation accepted the lease with knowledge that it was assigned subject to the obligations and liabilities contained in the agreement, developed the premises, and disbursed money in discharge of provisions in the contract. That clearly constituted recognition and rendered the corporation liable for its obligations fixed by the contract. Boatright v. Steinite Radio Corporation (C.C.A.) 46 F.(2d) 385; Kirkup v. Anaconda Amusement Co., 59 Mont. 469, 197 P. 1005, 17 A.L.R. 441 and notes. It is urged that the promoters did not undertake in their contract to bind the corporation to make such payments; that, instead, they provided that the corporation would contract and agree to make them. That is a strained and untenable construction of the instrument. Its plain purport and effect was to fix the respective sums, specify the time and manner of their payment, and provide that the corporation should make them. A new and independent contract in which the corporation should bind itself to make them was not contemplated. It was provided that the parties should cause the corporation to adopt and ratify the obligations and benefits of the contract by proper acts of its directors and stockholders; but acceptance of the lease with knowledge of the facts, development of the premises and disbursements of money under the terms of the contract constituted a binding ratification. The second question to which the parties address themselves relates to the applicability of the statute of frauds in Kansas, which provides in familiar language that no action shall be brought to charge a party upon any special promise to answer for the debt, default or miscarriage of another, unless some agreement or memorandum thereof is in writing and signed by the party to be charged. Section 33 — 106, Revised Statutes Kan. 1923, The statute is confined to a promise of one person to answer for the debt of another. Here the sums fixed in the contract represented a part of the consideration for the lease. The corporation was to acquire the lease, own the estate, develop it, and enjoy the profits after making such payments. It was the real party in interest, the actual beneficiary. Although the obligation was in form that of the promoters or preorganizers, it was in fact that of the corporation. The corporation had an immediate, personal, and pecuniary interest to be subserved in the transaction. For that reason the statute has no application. Emerson v. Slater, 22 How, 28, 43, 16 L„ Ed. 360; Davis v. Patrick, 141 U.S. 479, 12 S.Ct. 58, 35 L.Ed. 826; Gotham Nat. Bank v. Sharood (C.C.A.) 23 F.(2d) 567; Charles Broadway Rouss, Inc. v. Cooper (C.C.A.) 69 F.(2d) 671; Wright v. Farmers’ Nat. Grain Corporation (C.C.A.) 74 F.(2d) 425; Schufeldt v. Smith, 139 Mo. 367, 40 S.W. 887. The order is reversed, and the cause is remanded with direction to hear the claim on its merits. 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_respond2_8_3	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant. Nolan Ray WILLIAMSON, Plaintiff-Appellant, v. William SAXBE, United States Attorney General, et al., Defendants-Appellees. No. 74-2019. United States Court of Appeals, Sixth Circuit. April 4, 1975. Nolan Ray Williamson, Jef Feibelman, Memphis, Tenn., for plaintiff-appellant. Thomas F. Turley, U. S. Atty., Memphis, Tenn., Larry E. Parrish, Robert M. Williams, Jr., Asst. U. S. Attys., for defendants-appellees. Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges. PER CURIAM. At the time when he was awaiting trial under an indictment in the Western District of Tenness.ee, Nolan Ray Williamson refused to obey an order of the District Court requiring him to give voice exemplars. When he persisted in his refusal, the District Court on December 27, 1972, adjudged him to be in contempt of court and ordered him incarcerated until he gave voice exemplars as ordered. This court granted a motion to dismiss the appeal from that decision in an unpublished order, No. 73-1495, dated November 13, 1973. Prior to his incarceration for contempt of court, Williamson had been convicted and sentenced for a separate offense in the United States District Court for the Northern District of Georgia, Atlanta Division. He filed a complaint for declaratory relief, praying for a declaration that he is entitled to jail-time credit on his Georgia sentence for the time he has served in prison for contempt of court. The District Court held he is not entitled to jail-time credit and dismissed the complaint. The present appeal is from that decision. Counsel was appointed to represent Williamson both in the District Court and in this court in this declaratory judgment proceeding. Counsel has filed an excellent brief in this court in support of Williamson’s contentions. The record shows that at the time Williamson was adjudged to be in contempt of court, he was afforded every reasonable opportunity to change his mind and to give the voice exemplars as ordered. The District Judge stated in open court in the presence of Williamson that, in order that there would be no misunderstanding, he was making it plain that Williamson would receive no credit against federal criminal sentences for the jail time accruing while he was incarcerated for contempt of court. We follow Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), cert. denied, - U.S. -, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975), in affirming the decision of the District Court. The facts in Anglin are squarely on point except the reason for which the civil contempt penalty was imposed. Williamson contends that he is entitled to jail-time credit under 18 U.S.C. § 3568, which provides: § 3568. Effective date of sentence; credit for time in custody prior to the imposition of sentence The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. The fallacy in this argument is that Williamson’s civil contempt incarceration was not “in connection with the offense or acts for which sentence was imposed.” To hold that Williamson has a right to jail-time credit under the facts of this case would interfere seriously with the power of District Courts to punish civil contempt by incarceration when the person who is guilty of contempt is under sentence for some other offense. Affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant? A. Indian Tribes B. Foreign Government C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY) D. International Organizations E. Other F. Not ascertained Answer:
sc_certreason	K	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. ADAMS v. TEXAS No. 79-5175. Argued March 24, 1980 Decided June 25, 1980 White, J., delivered the opinion of the Court, in which Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 51. Burger, C. J., concurred in the judgment. Marshall, J., filed an opinion concurring in the judgment, post, p. 51. Behnquist, J., filed a dissenting opinion, post, p. 52. Melvyn Carson Bruder argued the cause for petitioner. With him on the brief were J. Stephen Cooper and George A. Preston. Douglas M. Becker, Assistant Attorney General of Texas, argued the cause for respondent. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Ted L. Hartley, Executive Assistant Attorney General, and W. Barton Boling, Assistant Attorney General. Jack Greenberg, James M. Nabrit III, Joel Berger, John Charles Boger, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal. Mr. Justice White delivered the opinion of the Court. This capital case presents the question whether Texas contravened the Sixth and Fourteenth Amendments as construed and applied in Witherspoon v. Illinois, 391 U. S. 510 (1968), when it excluded members of the venire from jury service because they were unable to take an oath that the mandatory penalty of death or imprisonment for life would not “affect [their] deliberations on any issue of fact.” We hold that there were exclusions that were inconsistent with Witherspoon, and we therefore reverse the sentence of death imposed on the petitioner. I Trials for capital offenses in Texas are conducted in a two-phase proceeding. See Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1979). In the first phase, the jury considers the question of the defendant’s guilt or innocence. If the jury finds the defendant guilty of a capital offense, the trial court holds a separate sentencing proceeding at which a wide range of additional evidence in mitigation or aggravation is admissible. The jury is then required to answer the following questions based on evidence adduced during either phase of the trial: “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and “(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Art. 37.071 (b). If the jury finds beyond a reasonable doubt that the answer to each of these questions is “Yes,” the court is required to impose a sentence of death. If the jury finds that the answer to any of the three questions is “No,” the court imposes a sentence of life imprisonment. Arts. 37.071 (c), (e). The petitioner in this case was charged with the capital offense of murdering a peace officer. During voir dire examination of individual prospective jurors, the prosecutor, and sometimes the trial judge, intensively inquired as to whether their attitudes about the death penalty permitted them to take the oath set forth in Tex. Penal Code Ann. § 12.31 (b) (1974). Section 12.31 (b) provides as follows: “Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.” Typically, the prospective juror was first advised that the State was seeking the death penalty and asked to state his general views on the subject, which were sometimes explored in considerable depth. He was then informed in detail of the special procedure used by Texas in capital cases, including in particular the fact that “Yes” answers to the three punishment questions would automatically result in the trial judge’s imposing the death sentence. Finally, he was asked whether he could state under oath, as required by § 12.31 (b), that the mandatory penalty of death or imprisonment for life would not affect his deliberations on any issue of fact. On the State’s submission and over petitioner’s objections, the trial judge excused a number of prospective jurors who were unwilling or unable to take the § 12.31 (b) oath. The jury selected under this procedure convicted the petitioner of the charged offense and answered the statutory questions affirmatively at the punishment phase, thus causing the trial judge to impose the death sentence as required by Art. 37.071 (e). On appeal, the petitioner argued that prospective jurors had been excluded in violation of this Court’s decision in Witherspoon v. Illinois, supra. The Texas Court of Criminal Appeals rejected the contention on the authority of its previous cases, which had “consistently held that the statutory scheme for the selection of jurors in capital cases in. Texas, and in particular the application of [§ 12.31 (b)] to the punishment issues, comports with the constitutional requirements of Witherspoon.” 577 S. W. 2d 717, 728 (1979). We granted the petition for a writ of certiorari, 444 U. S. 990 (1979), limited to the following questions: “(1) Is the doctrine of Witherspoon v. Illinois, 391 U. S. 510, applicable to the bifurcated procedure employed by Texas in capital cases? (2) If so, did the exclusion from jury service in the present case of prospective jurors pursuant to Texas Penal Code § 12.31 (b) violate the doctrine of Witherspoon v. Illinois, supra?” II A Witherspoon involved a state procedure for selecting juries in capital cases, where the jury did the sentencing and had complete discretion as to whether the death penalty should be imposed. In this context, the Court held that a State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment. The State was held to have no valid interest in such a broad-based rule of exclusion, since “[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him . . . and can thus obey the oath he takes as a juror.” Witherspoon v. Illinois, 391 U. S., at 519. The defendant, on the other hand, was seriously prejudiced by the State’s practice. The jury which sentenced him to death fell “woefully short of that impartiality to which the petitioner was entitled” on the issue of punishment, id., at 518. By excluding all those who opposed capital punishment, the State “crossed the line of neutrality” and “produced a jury uncommonly willing to condemn a man to die.” Id., at 520, 521. The Court recognized that the State might well have power to exclude jurors on grounds more narrowly drawn: “[Njothing we say today bears .upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt ” Id., at 522-523, n. 21 (emphasis in original). This statement seems clearly designed to accommodate the State’s legitimate interest in obtaining jurors who could follow their instructions and obey their oaths. For example, a juror would no doubt violate his oath if he were not impartial on the question of guilt. Similarly, the Illinois law in effect at the time Witherspoon was decided required the jury at least to consider the death penalty, although it accorded the jury absolute discretion as to whether or not to impose it. A juror wholly unable even to consider imposing the death penalty, no matter what the facts of a given case, would clearly be unable to follow the law of Illinois in assessing punishment. . In Boulden v. Holman, 394 U. S. 478, 483-484 (1969), we again emphasized the State’s legitimate interest in obtaining jurors able to follow the law: “[Ijt is entirely possible that a person who has a ‘fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.” And in Lockett v. Ohio, 438 U. S. 586, 595-596 (1978), we upheld against a Witherspoon challenge the exclusion of several jurors who were unable to respond affirmatively to the following question: “[D]o you feel that you could take an oath to well and truely [sic] try this case . . . and follow the law, or is your conviction so strong that you cannot take an oath, knowing that a possibility exists in regard to capital punishment?” This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court. B We have little difficulty in concluding. that this rule applies to the bifurcated procedure employed by Texas in capital cases. This procedure differs from the Illinois statute in effect at the time Witherspoon was decided in three principal ways: (1) the Witherspoon jury assessed punishment at the same time as it rendered its verdict, whereas in Texas the jury considers punishment in a subsequent penalty proceeding; (2) the Witherspoon jury was given unfettered discretion to impose the death sentence or not, whereas the discretion of a Texas jury is circumscribed by the requirement that it impartially answer the statutory questions; and (3) the Witherspoon jury directly imposed the death sentence, whereas Texas juries merely give answers to the statutory questions, which in turn determine the sentence pronounced by the trial judge. Because of these differences, the jury plays a somewhat more limited role in Texas than it did in Illinois. If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. Nevertheless, jurors in Texas must determine whether the evidence presented by the State convinces them beyond reasonable doubt that each of the three questions put to them must be answered in the affirmative. In doing so, they must consider both aggravating and mitigating circumstances, whether appearing in the evidence presented at the trial on guilt or innocence or during the sentencing proceedings. Jurors will characteristically know that affirmative answers to the questions will result in the automatic imposition of the death penalty, Hovila v. State, 532 S. W. 2d 293, 294 (Tex. Crim. App. 1975), and each of the jurors whose exclusion is challenged by petitioner was so informed. In essence, Texas juries must be allowed to consider “on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Jurek v. Texas, 428 U. S. 262, 271 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). This process is not an exact science, and the jurors under the Texas bifurcated procedure unavoidably exercise a range of judgment and discretion while remaining true to their instructions and their oaths. With these considerations in mind, it is apparent that a Texas juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the “guided jury discretion,” 577 S. W. 2d, at 730, permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. Exclusions under § 12.31 (b), like other exclusions, must be examined in this light. C The State urges that Witherspoon and § 12.31 (b) may coexist as separate and independent bases for excluding jurors in Texas and that exclusion under the statute is consistent with the Sixth and Fourteenth Amendments as construed in Witherspoon. Brief for Respondent 48. It is the State’s position that even if some jurors in the present case were excluded on grounds broader than that permitted under' Witherspoon, the exclusion was nevertheless proper under § 12.31 (b). The State’s argument is consistent with the holdings of decisions in the Texas Court of Criminal Appeals which have considered the relationship between Witherspoon and § 12.31 (b). The argument, such as it is, is unpersuasive. As an initial matter, it is clear beyond peradventure that Witherspoon is not a ground for challenging any prospective juror. It is rather a limitation on the State’s power to exclude: if prospective jurors are barred from jury service because of their views about capital punishment on “any broader basis” than inability to follow the law or abide by their oaths, the death sentence cannot be carried out. Witherspoon v. Illinois, 391 U. S., at 522, n. 21. While this point may seem too obvious to bear repetition, it is apparent from their frequent references to Witherspoon as a ground for “disqualifying” prospective jurors that the State, and the Texas Court of Criminal Appeals, might have fallen into the error of assuming that Witherspoon and § 12.31 (b) are both grounds for exclusion, so that there is no conflict if § 12.31 (b) excludes prospective jurors that Witherspoon does not. Nor do we agree with the State’s argument that because it has a different origin and purpose § 12.31 (b) cannot and will not lead to exclusions forbidden by Witherspoon. Unlike grounds for exclusion having nothing to do with capital punishment, such as personal bias, ill health, financial hardship, or peremptory challenges, § 12.31 (b) focuses the inquiry directly on the prospective juror’s beliefs about the death penalty, and hence clearly falls within the scope of the Wither-spoon doctrine. The State could, consistently with Wither-spoon, use § 12.31 (b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31 (b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. Finally, we cannot agree that § 12.31 (b) is “neutral” with respect to the death penalty since under that section the defendant may challenge jurors who state that their views in favor of the death penalty will affect their deliberations on fact issues. Despite the hypothetical existence of the juror who believes literally in the Biblical admonition “an eye for an eye,” see Witherspoon v. Illinois, supra, at 536 (Black, J., dissenting), it is undeniable, and the State does not seriously dispute, that such jurors will be few indeed as compared with those excluded because of scruples against capital punishment. The appearance of neutrality created by the theoretical availability of § 12.31 (b) as a defense challenge is not sufficiently substantial to take the statute out of the ambit of Witherspoon. Ill Based on our own examination of the record, we have concluded that § 12.31 (b) was applied in this case to exclude prospective jurors on grounds impermissible under Wither-spoon and related cases. As employed here, the touchstone of the inquiry under § 12.31 (b) was not whether putative jurors could and would follow their instructions and answer the posited questions in the affirmative if they honestly believed the evidence warranted it beyond reasonable doubt. Rather, the touchstone was whether the fact that the imposition of the death penalty would follow automatically from affirmative answers to the questions would have any effect at all on the jurors’ performance of their duties. Such a test could, and did, exclude jurors who stated that they would be “affected” by the possibility of the death penalty, but who apparently meant only that the potentially lethal consequences of their decision would invest their deliberations with greater seriousness and gravity or would involve them emotionally. Others were excluded only because they were unable positively to state whether or not their deliberations would in any way be “affected.” But neither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty. The grounds for excluding these jurors were consequently insufficient under the Sixth and Fourteenth Amendments. Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt. Such assessments and judgments by jurors are inherent in the jury system, and to exclude all jurors who would be in the slightest way affected by the prospect of the death penalty or by their views about such a penalty would be to deprive the defendant of the impartial jury to which he or she is entitled under the law. We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. But in the present case Texas has applied § 12.31 (b) to exclude jurors whose only fault was to take their responsibilities with special seriousness or to acknowledge honestly that they might or might not be affected. It does not appear in the record before us that these individuals were so irrevocably opposed to capital punishment as to frustrate the State’s legitimate efforts to administer its constitutionally valid death penalty scheme. Accordingly, the Constitution disentitles the -State to execute a sentence of death imposed by a jury from which such prospective jurors have been excluded. The judgment of the Texas Court of Criminal Appeals is consequently reversed to the extent that it sustains the imposition of the death penalty. So ordered. The Chief Justice concurs in the judgment. Under Tex. Penal Code Ann. § 19.03 (a) (1) (1974), whoever “murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman” is guilty of a capital felony. Texas also authorizes the death penalty for four other offenses: murder committed in the course of kidnaping, burglary, robbery, forcible rape, or arson; murder committed for remuneration; murder committed while escaping or attempting to escape from a penal institution; and murder of a prison employee by a prison inmate. § 19.03. Under the current Texas capital punishment scheme, the jury’s discretion over sentencing is limited both by § 19.03, which authorizes the death penalty for only a small class of aggravated crimes, and by Tex. Code Crim. Proc. Ann., Art. 37.071 (Vernon Supp. 1979), which mandates a sentence of death if, but only if, the jury answers “Yes” to each of the statutory penalty questions. This system was adopted in response to the Court’s judgment in Branch v. Texas, decided together with Furman v. Georgia, 408 U. S. 238 (1972), which struck down a statute giving the jury absolute discretion whether to impose the death penalty or not. The Court upheld the revised Texas capital punishment scheme in Jurek v. Texas, 428 U. S. 262 (1976). In Burns v. Estelle, 592 F. 2d 1297 (1979), a panel of the Court of Appeals for the Fifth Circuit found that the application of Tex. Penal Code Ann. § 12.31 (b) (1974) to the facts of that case violated Wither-spoon. The en bane Fifth Circuit has since set the case for rehearing en banc. 598 F. 2d 1016 (1979). The court held oral argument on January 8, 1980, but has as yet issued no decision. In Davis v. Georgia, 429 U. S. 122 (1976), the Court applied the Witherspoon doctrine to a case arising under a death penalty scheme similar in some respects to the current Texas system. Petitioner and amicus suggest that Davis conclusively establishes the applicability of Witherspoon to the present case. We do not treat the question as foreclosed, however, because the issue was not explicitly raised in that case. Even the State concedes that Witherspoon “applies” to the Texas system. Brief for Respondent 36-48. The State suggests that this proposition is questionable as a matter of “logic,” but agrees that Texas experience and case law conclusively demonstrate Witherspoon’s applicability. The Texas Court of Criminal Appeals has consistently held that Witherspoon is “alive and well” in that State. E. g., Woodkins v. State, 542 S. W. 2d 855, 862 (1976), cert. denied, 431 U. S. 960 (1977); Burns v. State, 556 S. W. 2d 270, 275, cert. denied, 434 U. S. 935 (1977); Brock v. State, 556 S. W. 2d 309, 312, cert. denied, 434 U. S. 1002 (1977); Whitmore v. State, 570 S. W. 2d 889, 893 (1976). E. g., Moore v. State, 542 S. W. 2d 664, 672 (1976), cert. denied, 431 U. S. 949 (1977); Woodkins v. State, supra, at 862; Shippy v. State, 556 S. W. 2d 246, 251, cert. denied, 434 U. S. 935 (1977); Burns v. State, supra, at 275-276; Freeman v. State, 556 S. W. 2d 287, 297-298 (1977), cert. denied, 434 U. S. 1088 (1978); Brock v. State, supra, at 313; Hughes v. State, 562 S. W. 2d 857, 859-861, cert. denied, 439 U. S. 903 (1978); Hughes v. State, 563 S. W. 2d 581, 583 (1978), cert. denied, 440 U. S. 950 (1979) ; Bodde v. State, 568 S. W. 2d 344, 348-349 (1978), cert. denied, 440 U. S. 968 (1979); Whitmore v. State, supra, at 893; Garcia v. State, 581 S. W. 2d 168, 174-175 (1979), cert. pending, No. 79-5464; Burks v. State, 583 S. W. 2d 389, 393-394 (1979), cert. pending, No. 79-5533. E. g., Brief for Respondent 34, 42, 48; Moore v. State, supra, at 672; Brock v. State, supra, at 313; Hughes v. State, 562 S. W. 2d, at 860; Hughes v. State, 563 S. W. 2d, at 586; Chambers v. State, 568 S. W. 2d 313, 320 (1978), cert. denied, 440 U. S. 928 (1979); Bodde v. State, supra, at 348; Garcia v. State, supra, at 175. Prospective jurors Mahon, Jenson, and Ferguson fell into this category. As Jenson said at one point during his voir dire examination: “Well, I think it probably would [affect my deliberations] because afterall [sic], you’re talking about a man’s life here. You definitely don’t want to take it lightly.” Tr. of Voir Dire 367. Prospective jurors Coyle, White, McDonald, and Riddle were excluded on this ground. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_appel2_1_4	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 "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. PEOPLE’S TRUST CO. et al. v. UNITED STATES. Circuit Court of Appeals, First Circuit. January 13, 1928. No. 2163. I. Banks and banking <§=>63i/2-;-State bank commissioner, winding up affairs' of insolvent bank, acts as officer of court (Pub. Laws N. H. 1926, 0. 268). State bank commissioner, in winding up affairs of insolvent bank, under Fub. Laws N. H. 1926, c. 268, does not act merely in an executive or administrative capacity, but as an officer of tke court in the nature of a receiver. 2. Courts <§=>497 — Pendenoy of proceeding in rem in state court bars suit in federal District Court involving same subject-matter, though United States is party. Federal District Court has no jurisdiction to entertain bill to which United States is party, where prior suit involving same subject-matter is pending in state court, provided state court proceeding is in rem, or involves exercise of discretion or control over fund in custody of commissioner, since exercise by another court of jurisdiction over same res may defeat jurisdiction of court in which original action was brought. 3. Courts <§=>564 — State court proceedings for liquidation of insolvent bank, and intervention of United States therein to establish claim, held in rem, precluding subsequent exercise of jurisdiction by federal court in suit to establish priority (Pub. Laws N. H. 1926, c. 268, §§ 13-15; 31 USCA § 191). Equity proceeding, instituted against insolvent bank by commissioners relating to its liquidation, under Pub. Laws N. H. 1926, c. 268, and intervention therein by United States, looking to proof of claim under section 13, held proceeding in rem, which deprived federal court of jurisdiction in subsequent action in equity brought by United States, under Rev. St. § 3466 (31 USCA § 191), to adjudicate priority of claim, after priority had been denied in state court, notwithstanding sections 13-15 of chapter 268, authorizing suit in nature of appeal after rejection of claim. 4. Banks and banking <§=>76 — .State statute authorizing suit by creditor of insolvent bank after rejection of claim merely permits suit In state court in nature of appeal (Pub. Laws N. H. 1926, c. 268, § 15). Pub. Laws N. H. 1926, c. 268, § 15, relating to liquidation of insolvent hanks in equity proceedings by commissioners, and authorizing suit on rejected claims within six months, held to authorize proceedings in state court only in nature of appeal, and not to permit commencement of suit in federal District Court, in view of sections 13, 14. 5. Banks and banking <§=>76 — Determination of priority of claims against insolvent bank Is for superior court (Pub. Laws N. H. 1926, c. 268, § 19). The bank commissioner has authority to allow or reject a claim and report the same to superior court in proceedings for liquidation of insolvent bank, under Pub. Laws N. 11. 1926, c. 268, §§ 13, 14, but no authority to pass on its priority; questions of priority or order of payment are for determination of superior court, on distribution under section 19. 6. Banks and banking <§=»80(4) — State statute relative to distribution of assets of insolvent banks does not determine order of claim given priority under federal law (Pub. Laws N. H. 1926, c. 268, § 29). Pub. Laws N. H. 1926, c. 268, § 29, relative to order of distribution of claims against insolvent bank, does not determine order of distributton of claims, where claim is given priority under federal law, since federal law is supreme. 7. Banks and banking <§=>80(4) — Distribution of assets of insolvent bank is determined in connection with statute governing distribution of property of insolvent persons (Pub. Laws N. H. 1926, o. 268, § 29; o. 401, § 31). Pub. Laws N. H. 1926, c. 268, § 29, relative to order of distribution of proceeds of insolvent bank, must be construed with reference to provisions of chapter 401, § 31, providing for distribution of proceeds of property of insolvent persons. 8. Courts <§=>394(0 — If United States asserts claim against insolvent bank under state and federal statutes, granting priority, it may have question reviewed by United States Supreme Court (31 USCA § 191; Pub. Laws N. H. 1926, o. 401, § 31). If United States asserts its right to priority of claim against insolvent bank under Rev. St. § 3466 (31 USOA § 191), and Pub. Laws N. H. 1926, c. 401, § 31, giving debts of United States priority, question may be reviewed by the state Supreme Court, and ultimately by Supreme Court of United States, on ground of federal question, in case of denial of priority by state courts. Appeal from the District Court of the United States for the District of New Hampshire; George F. Morris, Judge.. Suit in equity by the United States against the People’s Trust Company and others. Decree for the United States (17 F. [2d] 437)’, and defendants appeal. Decree of District Court vacated, and case remanded, with directions. Robert W. Upton, of Concord, N. H., for appellants. Raymond U. Smith, U. S. Atty., of Woodsville, N. H. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. BINGHAM, Circuit Judge. This is a bill in equity, brought November 12,1925, to establish a claim amounting to $2,221.40, said to be due the United States, and its priority under section 3466 of the Revised Statutes (31 USCA § 191). The case is here on appeal from a decree of the federal District Court of New Hampshire in favor of the complainant. The appellants are the People’s Trust Company, a bank organized under the laws of New Hampshire, Arthur E. Dole, bank commissioner, George E. Far-rand, deputy bank commissioner, and James E. Farrell, agent for the bank commissioner. In January, 1925, the then bank commissioners of the state brought a petition in ■equity against the trust company in the superior court of the state, wherein they alleged that "it is judged by them to be necessary for the public safety that said corporation should not continue to transact business,” and prayed that the corporation and officers be enjoined from transacting business. January 13th a decree was entered as prayed for. On January 30, 1925, upon a further petition of like character, the state court entered a decree directing the bank commissioners to forthwith take possession of the property and business of the bank, and retain the same until the bank should resume business or its affairs be liquidated as provided by law, which they did. The bank, though duly served with notice, filed no answer to the petitions upon which these decrees were entered, and made no defense. By an act- of the Legislature of the state, effective July 1, 1925, the old bank commissioners went out of office and were succeeded by Commissioner Dole, Deputy Commissioner Farrand, with James E. Farrell as agent, who have had possession of the property and business of the trust company since July 1,1925, under decrees of the court, and are liquidating its affairs. January 13, 1925, when the bank was closed by order of the state court, two postmasters, who were entitled to deposit postal funds in the bank, had on deposit therein $2,221.40, the property of the United States. The liquidation of the bank is being and has been carried on under the direction of the court in the equity proceeding instituted by the commissioners, pursuant to chapter 268, Pub. Laws N. H., relating to the liquidation of such an insolvent bank. As required by section 13 of that act, notice was given, calling on all persons having claims against the bank to present them to the commissioner on or before June 8, 1925, and make legal proof thereof. In compliance therewith the complairiant seasonably made and presented to the commissioner proof of its claim, which was allowed as to amount, but not as to priority. Thereafter, and within six months after receiving notice of this action of the commissioner, the complainant brought this bill in the federal District Court for New Hampshire. The defendants move to dismiss the bill for want of jurisdiction, in that the complainant ha.d duly submitted its claim to the state court in the equity proceeding against the bank, which had been allowed as a just and valid claim although its priority was denied. The motion was denied, and the defendants excepted. An answer having been filed and trial had, the court entered a decree to the effect that the complainant on the 30th day of January, 1925, had on deposit in the bank $2,221.40, which had not been repaid; that it was entitled to have its claim paid prior to other claims; that defendants had possession of all the assets- of the bank, and more than sufficient to pay the claim; and that they should pay the complainant, out of the funds of the bank in their hands, the above sum, with interest from October 6,1925, and costs. It is this decree that is appealed from. The assignments of error relied upon are that the court erred: (1) In holding that it had jurisdiction; (2) in holding that the taking over of the property and business of the bank by the commissioners was an act of bankruptcy, and that the complainant was entitled to priority under section 3466. The bank commissioner, in winding up the affairs of an insolvent bank under the New Hampshire statute (P. L. e. 268), does not act merely in an executive or administrative capacity, but as an officer of the court in the nature of a receiver, and it is in this aspect, and the fact that the complainant, before bringing this bill in the District Court, intervened in the original equity proceeding in the state court, and presented and established the validity of its claim, except as to priority, that the present case differs, so far as the question of jurisdiction is concerned, from that of Allen v. United States (C. C. A.) 285 F. 678; for in that case it appeared that the commissioner acted only in an administrative or executive 'capacity, and that the complainant had not presented and proved its claim before the commissioner. It must be conceded that the District Court, as a federal court, had jurisdiction and authority to entertain the complainant’s bill, the United States being a party, and that the pendency of a prior suit in the state court, involving the same subject-matter, would not operate as a bar to the present bill and justify its dismissal (Boston & Maine R. R. v. Dutille [C. C. A.] 289 F. 320), unless the original proceeding against the bank in the state court, in which the complainant intervened and proved its claim., was a proceeding in rem, or involved the exercise of possession or control over the fund in the custody and possession of the commissioner. Kline v. Burke Construction Co., 260 U. S. 226, 229, 230, 231, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077; General Outdoor Advertising Co. v. Williams (C. C. A.) 12 F(2d) 773, and cases there cited. The reason for the exception is that, where the prior action is in rem, the effect is to draw to the court where that action is pending the possession or control, actual or potential, of the res, and the exercise by another court of jurisdiction over the same res necessarily impairs, and may defeat, the jurisdiction (that has already attached) of the court in which the prior action was brought. Kline v. Burke Constr. Co., supra, at page 229 (43 S. Ct. 81); Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77, 88, 89, 43 S. Ct. 480, 67 L. Ed. 871. It must be conceded that the original bill brought in the state court against the bank, the purpose and effect of which was the seizure and distribution of its assets among its creditors, was a proceeding in rem; and it must likewise be conceded that the complainant’s intervention and proof of claim in that proceeding, and of which it thereby became a part, was a proceeding in rem, not in personam, for what the complainant sought was a judgment against the funds of the bank in the possession and control of the commissioner, under a decree of the state court. As the •claimant has already prosecuted its claim in the state proceedings, the case does not fall under the doctrine of Waterman v. Canal, etc., Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80. The District Court, therefore, was without jurisdiction to entertain the bill. In its decision the District Court proceeded upon the theory that section 15, chapter 268, of the New Hampshire statute, authorized the bringing of this proceeding in the federal court, if the claim upon which it was based had been presented to and rejected by the commissioner and the proceeding was begun within six months after notice of rejection. See sections 13, 14, chapter 268. In other words, that these conditions were conditions precedent to the maintenance of an action on a claim in the federal court. We do not think this is so. McClellan v. Carland, 217 U. S. 268, at page 281, 30 S. Ct. 501, 504, 54 L. Ed. 762. These prerequisites apply only where the suit on a rejected claim is brought in the state eourt, for the suit authorized by section 15, chapter 268, is in the nature of an appeal, and, being of that nature, the state court alone would have jurisdiction over it. Then, again, the commissioner under sections 13 and 14, chapter 268, is authorized to allow or reject claims. He has no authority to pass upon the question of priority. Having allowed the complainant’s claim and reported it to the superior court in the list of elaims passed upon by him, the questions of priority or order in which payment should be made upon it and other allowed claims, and the amounts that should be paid at a given time, are for the superior court to determine in its decree of distribution. Section 19,, chapter 268. The provisions of section 29, chapter 268, are not determinative of the order in which distribution should be made where an allowed claim is given priority under federal law, for the federal law is supreme. Nor are they determinative of how distribution should be made where an allowed claim of the United States is entitled to priority under a local statute of the state. The provisions of section 29, which concern the distribution of the proceeds of the property of an insolvent bank, are to be construed with reference to the provisions of chapter 401, § 31, Pub. Laws N. H., providing for tha distribution of the proceeds of property oi insolvent persons. Jones v. Arena Publishing Co., 171 Mass. 22, 29, 50 N. E. 15. It is there (section 31) provided that “debts due the United States and all taxes” shall be entitled to priority and shall be paid in full, and this without regard to the limitations imposed by Rev. Stat. § 3466. Had the complainant asserted its right to priority under section 3466 of the Revised Statutes and section 31, c. 401, of Pub. Laws N. H., in the superior court of the state, or if it shall hereafter do so, and if by the decree of distribution its claim to priority should be denied, it may have the question reviewed in the Supreme Court of the state. Bank Commissioner v. New Hampshire Banking Co., 74 N. H. 292, 67 A. 583. And if the Supreme Court of the state should deny its right to priority it may have the matter reviewed by the Supreme Court of the United States on the federal question presented by section 3466. The decree of the District Court is vacated, and the case is remanded to that court, with directions to dismiss the same for want of jurisdiction. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant? A. bank B. insurance C. savings and loan D. credit union E. other pension fund F. other financial institution or investment company G. unclear Answer:
songer_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). AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, LOCAL UNION 576, Appellant, v. Robert E. ALLEN, Regional Director, Seventeenth Region of the National Labor Relations Board, Appellee. No. 19755. United States Court of Appeals, Eighth Circuit. March 19, 1970. Jerome F. Waterman, of Houlehan & Waterman, Kansas City, Mo., for appellant ; Robert L. Kimbrough, Topeka, Kan., on the brief. Michael F. Rosenblum, Atty., N.L.R.B., Washington, D. C., for appellee; Arnold Ordman, Gen. Counsel, N.L.R.B., Dominick L. Manoli, Assoc. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., and Glen M. Bendixsen, Attorney, N.L.R.B., on the brief. Before BLACKMUN, GIBSON and LAY, Circuit Judges. LAY, Circuit Judge. A suit for declaratory judgment was commenced in the district court by the Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union 576 (hereinafter called Amalgamated) against Robert E. Allen, a Regional Director of the National Labor Relations Board. The purpose of the complaint was to set aside a representation election conducted by the National Labor Relations Board pursuant to Section 9 of the National Labor Relations Act, 29 U.S.C. § 159. Jurisdiction of the district court was allegedly premised upon the denial of due process in failing to give the union proper notice of a representation hearing. The district court denied relief and dismissed the action for (1) lack of equity, (2) lack of jurisdiction and (3) failure of the union to exhaust its administrative remedies. 298 F.Supp. 985 (W.D.Mo.1969). We affirm. The facts reveal that plaintiff was notified by registered mail as to the representation hearing to be held by a hearing officer of the Board on November 8, 1968. However, Amalgamated asserts that pursuant to an earlier inquiry by the Board’s field examiner its representatives had informed him that November 14, 1968, was the earliest possible date they could attend. On the morning of November 5, 1968, after the notice as to the November 8 hearing had been mailed, but before the notice was received by plaintiff, the hearing officer contacted plaintiff’s representative to see whether plaintiff was going to be present. Plaintiff’s representative restated to the hearing officer that no one could be present until November 14. According to plaintiff’s evidence the hearing officer responded by telling him that “I will see what can be done.” (The latter statement was denied by the hearing officer.) On the same afternoon the union representative received the notice of the November 8 hearing. No further contact between the parties was made. The certification proceeding was held on November 8, 1968, as scheduled. Amalgamated was not present at the hearing and its name was not placed on the ballot. The independent union which had originally petitioned for the election won the election by a vote of thirteen to three and was certified. Amalgamated did not move for a rehearing or otherwise pursue administrative review as required under Section 102.67 of the Board's rules and regulations. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Plaintiff filed this action directly in the district court on the ground that it was denied constitutional due process by ineffective notice. Plaintiff asserts that the district court has jurisdiction under Fay v. Douds, 172 F.2d 720 (2 Cir. 1949). We need not decide the viability of Fay v. Douds, supra, since the facts clearly show plaintiff’s claim of constitutional encroachment to be wholly frivolous. Assuming all of plaintiff’s allegations to be true and, arguendo, that plaintiff would not be required to pursue its administrative remedy, there is no showing of any constitutional deficiency of notice. The notice involved was reasonably calculated to apprise the interested party of the pendency of the action and afforded Amalgamated an opportunity to present its position and objections. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956); Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956); Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); cf. Heeney v. Miner, 421 F.2d 434 (8 Cir. February 18, 1970). The evidence demonstrates that notice of the proceedings was given to plaintiff. The most that can be gleaned from plaintiff’s argument is that it relied upon the statement of the hearing officer to the effect that he would look into the apparent conflict as to dates and “see what he can do.” No further communication was made and plaintiff’s representatives made no effort to ascertain whether the registered notice received on November 5, 1968, was to be withdrawn or the hearing continued. At best, the union’s argument rises only to the level of some obtuse form of equitable estoppel which equity itself would be bound to deny. There was never a statement made by the Board upon which a reasonable person could in good faith rely. The basis of the district court’s holding upon which we affirm is that the facts proven fail to establish federal jurisdiction to otherwise review a certification proceeding. See Boire v. Greyhound Corporation, 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). Judgment affirmed. . Independent Meat Cutters Union. . The Second Circuit in Fay v. Douds, supra, held that a district court might review a certification proceeding if a constitional question, not transparently frivolous is raised. 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_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". HILLIARD v. PENNSYLVANIA R. CO. No. 6441. Circuit Court of Appeals, Sixth Circuit. Nov. 7, 1934. M. C. Harrison, of Cleveland, Ohio (Harrison & Marshman and Krieg & Stendel, all of Cleveland, Ohio, on the brief), for appellant. T. L. Jackson, of Youngstown, Ohio (Harrington, Huxley & Smith, of Youngstown, Ohio, on the brief), for appellee. Before MOORMAN, HICKS, and SI-MONS, Circuit Judges. MOORMAN, Circuit Judge. Appellant was injured in the state of Pennsylvania by one of appellee’s trains when he was three and a half years old. Eighteen years later he brought this suit in Ohio to recover for the injuries, alleging that they were caused by the negligence of the crew in charge of the train. The appellee by answer denied the allegations of negligence and pleaded, in bar of the action, the Pennsylvania statute of limitation, which it alleged was applicable. At the conclusion of the opening statement at the trial, the court directed a verdict for the appellee, on which judgment was entered. The record does not, show whether the court acted on the view that the facts stated by counsel were not sufficient to support an inference of negligence, or was of opinion that the action was barred by limitation. In Best v. District of Columbia, 291 U. S. 411, 415, 54 S. Ct. 487, 489, 78 L. Ed. 882, it was said: “To warrant the court in directing a verdict for defendant” upon an opening statement, “it is not enough that ¡he statement be lacking in definiteness, bnt it must clearly appear, after resolving all doubts in plaintiffs favor, that no cause of action exists.” See, also, Anderson v. Missouri State Life Ins. Co., 69 F.(2d) 794, 797 (C. C. A. 6). Applying this rule io the opening statement here acted npon, it is our opinion that the court was not .justified in directing the verdict upon the ground that the facts stated were not sufficient to support an inference of negligence. Whether they clearly show that the action was barred when brought depends on the construction to be placed upon the statutes of Ohio limiting the time in which fictions may be brought in Ohio on causes arising in foreign jurisdictions. Counsel agree that by the law of Pennsylvania, the cause of action was barred at the expiration of two years from the date of the injury. Pa. St. 1920, § 13859a (12 PS Pa. § 34); Peterson v. Ferry Co., 190 Pa. 364, 42 A. 955. They also agree that the Pennsylvania statute is a limitation on the remedy only, and that the question whether the cause, of action is barred in Ohio must be determined by the law of Ohio. They differ as to the interpretation to bo placed on the Ohio statutes. General Code Ohio, § 11224-1, provides: “An action for bodily injury or injuring personal property shall bo brought within two years after the cause thereof arose.” Section 11229 provides: “Unless otherwise specially provided therein, if a person entiih'd to bring any action mentioied in this chapter, unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may bring it within the respective times limited by this chapter, after such disability is removed. * s ” This latter section clearly postpones the application of the former to a minor injured in Ohio until the minor shall become of age. The Pennsylvania statute, as indicated, provides that a minor's cause of action for personal injury shall be barred at the expiration of two years from the date of the injury. Thus under the Pennsylvania statutes, limitation for bringing an action for personal injury to a minor is a •‘less number of years” than under the statutes of Ohio. Ohio General Code, § 11234, provides: “If the laws of any state or country where the cause of action arose limits the time for the commencement of the action to a less number of years than do the statutes of this state in like causes of action then said cause of action shall be barred in this state at the expiration of said lesser number of years.” The time allowed by the Pennsylvania law for commencing an action for personal injury to an infant being less than the time fixed by the statutes of Ohio, it would seem plain that this statute fixes in Ohio the same period for commencing action on such causes arising in Pennsylvania as is fixed by the Pennsylvania statute. Appellant contends, however, that section 11229 of the Ohio Code, which extends section 11224-1 of the Code of that state, must be construed as likewise applicable to and extending section 11234 so far as it relates to a minor’s cause of action for personal injuries arising in another state. We think the history of the Ohio statutes does not justify that construction. The origin of sections 11229 and 11234 is to be found in the Code of Civil Procedure Act of March 14, 1853 (51 Laws of Ohio 57). Title 2 of that act is entitled “Time of Commencing Civil Actions,” and is divided into chapters. Chapter 3 is entitled “Actions other than for the recovery of real property.” Section 19 {hereof is substantially the same as the present section 11229. Chapter 4 is entitled “General Provisions,” and section 22 thereof corresponds to the present section 11234. The headings and numbers of the chapters were retained in Swan’s Revised Statutes of Ohio (1854), and the language remained unchanged (pages 628, 629). It thus appears that causes of action arising in other states were not mentioned in the same chapter with the section relating to disabilities in either the Civil Procedure Act of 1853 or in the Revised Statutes 'of 1854. In the Revised Statutes of 1880, title 2 was denominated “Chapter 2” but was entitled “Time for Commencing Civil Actions.” Chapter 3 became subdivision 3 and was entitled “Other Actions.” Section 19 became section 4986, and the wording was changed so as to read: “If any person entitled to bring any action mentioned in this subdivision,” etc. Chapter 4 became subdivision 4, and section 22 became section 4990, and as changed read: “If, by the laws of the state or country where the cause of action arose, the action is barred, it is also barred in this state.” In this edition of the Revised Statutes, causes of action arising in other states were not mentioned in the subdivision which contained the section relating to disabilities. Section 4986 of the Revised Statutes was amended March 26, 1883 (80 Ohio Laws, p. 77), and therein the section relating to disabilities referred to any action mentioned in “this subdivision.” Likewise, in the amendment of April 14, 1886 (83 Ohio Laws, p. 74) and the Revised Statutes of Ohio (Smith & Benedict 1893) the word “subdivision” was used in this section. The two sections were not in the same subdivision in any of these enactments. In the Ohio General Code of 19Í0, chapter 2, tit. 54, was entitled “Limitations of Actions,” and divided into subheadings, but the subheadings were not called “subdivisions.” In that Code, section 4986 of the Revised Statutes became section 11229, in its present form, under the heading “Saving Clause — Disabilities,” with the word “chapter” substituted for “subdivision.” This change and the adding of “Unless otherwise specially provided therein” were the work of a codifying commission. Revised Statutes, § 4990, became section 11234, in its present form, having been amended by an Act of May 10, 1910 (101 Ohio Laws, p. 226), and was printed in the same chapter under the heading “Bar of Foreign Law and Other Matters.” The present Ohio General Code is the same. These changes, as we have stated, were made by a codifying commission, but the entire Code was adopted by the General Assembly of Ohio in 1910 by an act entitled “An Act to revise and consolidate the General Statutes of Ohio.” It is clear from the history of these statutes that prior to the Code of 1910 the disability section had no application to the section relating to causes of action arising in other states. The question, therefore, is whether we must accept the grouping of the sections in the Code' of 1910 as conclusive, or should examine and consider the original statutes in determining the legislative intent of the provisions here in question. Both provisions were enacted at the same time. Section 11234 definitely provides for the same period of limitation as exists in the state where the cause of action arose, provided it is “a less number of years” than the Ohio period. A preceding section in the same enactment deals, as we have seen, with the Ohio limitation in actions for personal injuries to minors. The plain purpose of section 11234, it seems to us, is not to extend the limitation as to causes arising in other states beyond the periods fixed in such states. This purpose would be defeated if appellant’s construction of section 11229 is to be accepted. Furthermore, we cannot suppose that it was intended by the enactment of section 11229 to make the Ohio courts the haven of infants and other persons under disability having claims outlawed in the states in which they arose. In this situation we think there is such doubt as to the meaning of the two provisions as to justify resort to the original statutes' as an aid in arriving at the legislative intent. Ash v. Ash, 9 Ohio St. 383; Hamilton v. Steamboat R. B. Hamilton, 16 Ohio St. 428; State ex rel. v. Commissioners of Shelby County, 36 Ohio St. 326; Allen v. Russell, 39 Ohio St. 336; The State ex rel. Manix v. Auditor of Darke Co., 43 Ohio St. 311, 1 N. E. 209; State ex rel. Pugh v. Brewster, 44 Ohio St. 249, 6 N. E. 653; State v. Stout, 49 Ohio St. 270, 284, 30 N. E. 437. There are, it is true, decisions of the Supreme Court of Ohio where the court has refused to allow earlier acts to in-1 fluenee interpretation of later ones, but an examination of those decisions shows that in each case it was clear from the wording of the revised act that a “change in substance was intended.” In our opinion, there is no such intent apparent from the wording of this act, and we must therefore hold that section 11229 does not relate to causes of action arising in other states and does not have the effect of extending the period of limitation fixed by the Pennsylvania law as imported into the Ohio law by section 11234. The appellant contends that the appellee is estopped from asserting the defense of limitation because of a statement made by its claims adjuster to appellant’s father, shortly after the accident, that “when the boy gets to be twenty-one years old, he can determine for himself whether he will file a lawsuit or not.” This statement did not amount to an express promise or agreement not to rely upon the statutes, as in Schroedor v. Young, 161 U. S. 334, 16 S. Ct. 512, 516, 40 L. Ed. 721, where the defendant stated that “the statutory time to redeem would not be insisted upon.” In our view, it was but an expression of the opinion of the claims adjuster as to a matter of law. Nothing appears in the record to indicate that he was an expert in the laws of limitation or that the facts were not as well known to the father as to him. Each of the parties was chargeable with knowledge of the law. Mutual Life Ins. Co. of New York v. Phinney, 178 U. S. 327, 342, 20 S. Ct. 906, 44 L. Ed. 1088. The expression by the claims adjuster of his opinion as to the law, in such circumstances, cannot, therefore, operate as an estoppel. Fish v. Cleland, 33 Ill. 243; Hopperton v. Louisville & N. R. Co., 34 S. W. 895, 17 Ky. Law Rep. 1322; Upton v. Tribilcock, 91 U.S. 45, 50, 23 L. Ed. 203; Sturm v. Boker, 150 U. S. 312, 336, 14 S. Ct. 99, 37 L. Ed. 1093. The ease is different from Snell v. Insurance Co., 98 U. S. 85, 25 L. Ed. 52, where the party relied upon the greater knowledge of an insurance agent as to the extent of the protection offered by the policy, and, similarly, from Wheeler v. Smith, 9 How. 55, 81, 82, 13 L. Ed. 44, where a young, inefficient, and easily-misled man relied upon statements made by a, distinguished lawyer in whom he reposed great confidence. Here, as stated, there was no showing that the claims adjuster was an expert in the law, or was believed to be one by the appellant’s father, or that the latter was not fully as competent as the adjuster to determine what the son’s rights wore as to the question of law upon which the adjuster is said to have expressed an opinion. It is our view, therefore, that the appellee is not estopped from relying upon the statutes of limitation, and that as the statutes had run when the action was commenced, the trial court rightly directed a verdict for the appellee. The judgment is affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_caseorigin	212	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. State of KANSAS, Plaintiff v. States of NEBRASKA and Colorado. No. 126, Orig. Supreme Court of the United States Argued Oct. 14, 2014. Decided Feb. 24, 2015. John B. Draper, Special Assistant Attorney General, Draper & Draper LLC, Jeffrey J. Wechsler, Montgomery & Andrews, P.A., Santa Fe, NM, Derek Schmidt, Attorney General of Kansas, Stephen R. McAllister, Solicitor General of Kansas, Counsel of Record, Jeffrey A. Chanay, Deputy Attorney General, Christopher M. Grunewald, Assistant Attorney General, Burke W. Griggs, Special Assistant Attorney General, Bryan C. Clark, Assistant Solicitor General, Topeka, KS, for Petitioner. John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, Scott Steinbrecher, Assistant Attorney General, Colorado Department of Law, Counsel of Record, Denver, CO, for Respondent. Jon Bruning, Attorney General of Nebraska, David D. Cookson, Chief Deputy Attorney General, Justin D. Lavene, Assistant Attorney General, Counsel of Record, Office of the Attorney General, Donald G. Blankenau, Thomas R. Wilmoth, Special Assistant Attorneys General, Blankenau Wilmoth Jarecke LLP, Lincoln, NE, for Respondent. Steve N. Six, Attorney General of Kansas, John B. Draper, Counsel of Record, Montgomery & Andrews, P.A., Santa Fe, NM, for Petitioner. Vincent L. McKusick, Special Master, Portland, ME, for Final Report of the Special Master with Certificate of Adoption of RRCA Groundwater Model. John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, Peter J. Ampe, First Assistant Attorney General, Autumn Bernhardt, Assistant Attorney General, Federal and Interstate Water Unit, Natural Resources and Environment Section, State of Colorado, Office of the Attorney General Denver, CO, for Respondents. Carla J. Stovall, Attorney General of Kansas, John W. Campbell, Chief Deputy Attorney General, John M. Cassidy, Assistant Attorney General, Leland E. Rolfs, Special Assistant Attorney General, John B. Draper, Counsel of Record, Special Assistant Attorney General, Andrew S. Montgomery, Montgomery & Andrews, P.A., Santa Fe, NM, for Petitioner. Don Stenberg, Attorney General of Nebraska, David D. Cookson, Assistant Attorney General, Counsel of Record, Lincoln, NE, Bartholomew L. McLeay, Special Assistant Attorney General, Omaha, NE, for Respondents. Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Felicity Hannay, Deputy Attorney General, Wendy Weiss, First Assistant Attorney General, Alexandra L. Davis, Assistant Attorney General, Natural Resources and Environment Section, Attorneys for State of Colorado, Denver, CO, for Respondents. Don Stenberg, Attorney General of Nebraska, Marie Pawol, Assistant Attorney General, Counsel of Record, Lincoln, NE, Bartholomew L. McLeay, Special Assistant Attorney General, Omaha, NE, for Respondents. Don Stenberg, Attorney General of Nebraska, for Respondents. Opinion Justice KAGANdelivered the opinion of the Court. For the second time in little more than a decade, Kansas and Nebraska ask this Court to settle a dispute over the States' rights to the waters of the Republican River Basin, as set out in an interstate compact. The first round of litigation ended with a settlement agreement designed to elaborate on, and promote future compliance with, the Compact's terms. The States now bring new claims against each other arising from the implementation of that settlement. Kansas seeks exceptional relief-both partial disgorgement of gains and an injunction-for Nebraska's conceded overconsumption of water. For its part, Nebraska requests amendment of a technical appendix to the settlement, so that allocations of water will faithfully reflect the parties' intent as expressed in both the body of that agreement and the Compact itself. We referred the case to a Special Master and now accept his recommendations as to appropriate equitable remedies: for Kansas, partial disgorgement but no injunction; and for Nebraska, reform of the appendix. I The Republican River originates in Colorado; crosses the northwestern corner of Kansas into Nebraska; flows through much of southwestern Nebraska; and finally cuts back into northern Kansas. Along with its many tributaries, the river drains a 24,900-square-mile watershed, called the Republican River Basin. The Basin contains substantial farmland, producing (among other things) wheat and corn. During the Dust Bowl of the 1930's, the Republican River Basin experienced an extended drought, interrupted once by a deadly flood. In response, the Federal Government proposed constructing reservoirs in the Basin to control flooding, as well as undertaking an array of irrigation projects to disperse the stored water. But the Government insisted that the three States of the Basin first agree to an allocation of its water resources. As a result of that prodding, the States negotiated and ratified the Republican River Compact; and in 1943, as required under the Constitution, Art. I, § 10, cl. 3, Congress approved that agreement. By act of Congress, the Compact thus became federal law. See Act of May 26, 1943, ch. 104, 57 Stat. 86. The Compact apportions among the three States the "virgin water supply originating in"-and, as we will later discuss, originating onlyin-the Republican River Basin. Compact Art. III; see infra,at 1059 - 1064. "Virgin water supply," as used in the Compact, means "the water supply within the Basin," in both the River and its tributaries, "undepleted by the activities of man." Compact Art. II. The Compact gives each State a set share of that supply-roughly, 49% to Nebraska, 40% to Kansas, and 11% to Colorado-for any "beneficial consumptive use." Id.,Art. IV; see Art. II (defining that term to mean "that use by which the water supply of the Basin is consumed through the activities of man"). In addition, the Compact charges the chief water official of each State with responsibility to jointly administer the agreement. See id.,Art. IX. Pursuant to that provision, the States created the Republican River Compact Administration (RRCA). The RRCA's chief task is to calculate the Basin's annual virgin water supply by measuring stream flow throughout the area, and to determine (retrospectively) whether each State's use of that water has stayed within its allocation. All was smooth sailing for decades, until Kansas complained to this Court about Nebraska's increased pumping of groundwater, resulting from that State's construction of "thousands of wells hydraulically connected to the Republican River and its tributaries." Bill of Complaint, O.T. 1997, No. 126, Orig., p. 5 (May 26, 1998). Kansas contended that such activity was subject to the Compact: To the extent groundwater pumping depleted stream flow in the Basin, it counted against the pumping State's annual allotment of water.Nebraska maintained, to the contrary, that groundwater pumping fell outside the Compact's scope, even if that activity diminished stream flow in the area. A Special Master we appointed favored Kansas's interpretation of the Compact; we summarily agreed, and recommitted the case to him for further proceedings. See Kansas v. Nebraska,530 U.S. 1272, 120 S.Ct. 2764, 147 L.Ed.2d 1003 (2000). The States then entered into negotiations, aimed primarily at determining how best to measure, and reflect in Compact accounting, the depletion of the Basin's stream flow due to groundwater pumping. During those discussions, the States also addressed a range of other matters affecting Compact administration. The talks bore fruit in 2002, when the States signed the Final Settlement Stipulation (Settlement). The Settlement established detailed mechanisms to promote compliance with the Compact's terms. The States agreed that the Settlement was not "intended to, nor could [it], change [their] respective rights and obligations under the Compact." Settlement § I(D). Rather, the agreement aimed to accurately measure the supply and use of the Basin's water, and to assist the States in staying within their prescribed limits. To smooth out year-to-year fluctuations and otherwise facilitate compliance, the Settlement based all Compact accounting on 5-year running averages, reduced to 2-year averages in "water-short" periods. Id.,§§ IV(D), V(B). That change gave each State a chance to compensate for one (or more) year's overuse with another (or more) year's underuse before exceeding its allocation. The Settlement further provided, in line with this Court's decision, that groundwater pumping would count as part of a State's consumption to the extent it depleted the Basin's stream flow. An appendix to the agreement called the "Accounting Procedures" described how a later-developed "Groundwater Model" (essentially, a mass of computer code) would perform those computations. Id.,App. C; id.,App. J1. And finally, the Settlement made clear, in accordance with the Compact, that a State's use of "imported water"-that is, water farmers bring into the area (usually for irrigation) that eventually seeps into the Republican River-would not count toward the State's allocation, because it did not originate in the Basin. Id., §§ II, IV(F). Once again, the Settlement identified the Accounting Procedures and Groundwater Model as the tools to calculate (so as to exclude) that consumption. But there were more rapids ahead: By 2007, Kansas and Nebraska each had complaints about how the Settlement was working. Kansas protested that in the 2005-2006 accounting period-the first for which the Settlement held States responsible-Nebraska had substantially exceeded its allocation of water. Nebraska, for its part, maintained that the Accounting Procedures and Groundwater Model were charging the State for use of imported water-specifically, for water originating in the Platte River Basin. The States brought those disputes to the RRCA and then to non-binding arbitration, in accordance with the Settlement's dispute resolution provisions. After failing to resolve the disagreements in those forums, Kansas sought redress in this Court, petitioning for both monetary and injunctive relief. We referred the case to a Special Master to consider Kansas's claims. See 563 U.S. ----, 131 S.Ct. 378, 178 L.Ed.2d 14 (2011). In that proceeding, Nebraska asserted a counterclaim requesting a modification of the Accounting Procedures to ensure that its use of Platte River water would not count toward its Compact allocation. After two years of conducting hearings, receiving evidence, and entertaining legal arguments, the Special Master issued his report and recommendations. The Master concluded that Nebraska had "knowingly failed" to comply with the Compact in the 2005-2006 accounting period, by consuming 70,869 acre-feet of water in excess of its prescribed share.Report 112. To remedy that breach, the Master proposed awarding Kansas $3.7 million for its loss, and another $1.8 million in partial disgorgement of Nebraska's still greater gains. The Master, however, thought that an injunction against Nebraska was not warranted. In addition, the Master recommended reforming the Accounting Procedures in line with Nebraska's request, to ensure that the State would not be charged with using Platte River water. Kansas and Nebraska each filed exceptions in this Court to parts of the Special Master's report.Nebraska objects to the Master's finding of a "knowing" breach and his call for partial disgorgement of its gains. Kansas asserts that the Master should have recommended both a larger disgorgement award and injunctive relief; the State also objects to his proposed change to the Accounting Procedures. In reviewing those claims, this Court gives the Special Master's factual findings "respect and a tacit presumption of correctness." Colorado v. New Mexico,467 U.S. 310, 317, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). But we conduct an "independent review of the record," and assume "the ultimate responsibility for deciding" all matters. Ibid.Having carried out that careful review, we now overrule all exceptions and adopt the Master's recommendations. II The Constitution gives this Court original jurisdiction to hear suits between the States. See Art. III, § 2. Proceedings under that grant of jurisdiction are "basically equitable in nature." Ohio v. Kentucky,410 U.S. 641, 648, 93 S.Ct. 1178, 35 L.Ed.2d 560 (1973). When the Court exercises its original jurisdiction over a controversy between two States, it serves "as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force." North Dakota v. Minnesota,263 U.S. 365, 372-373, 44 S.Ct. 138, 68 L.Ed. 342 (1923). That role significantly "differ[s] from" the one the Court undertakes "in suits between private parties." Id.,at 372, 44 S.Ct. 138; see Frankfurter & Landis, The Compact Clause of the Constitution-A Study in Interstate Adjustments, 34 Yale L.J. 685, 705 (1925)(When a "controversy concerns two States we are at once in a world wholly different from that of a law-suit between John Doe and Richard Roe over the metes and bounds of Blackacre"). In this singular sphere, "the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the purposes of justice." Kentucky v. Dennison,24 How. 66, 98, 16 L.Ed. 717 (1861). Two particular features of this interstate controversy further distinguish it from a run-of-the-mill private suit and highlight the essentially equitable character of our charge. The first relates to the subject matter of the Compact and Settlement: rights to an interstate waterway. The second concerns the Compact's status as not just an agreement, but a federal law. Before proceeding to the merits of this dispute, we say a few words about each. This Court has recognized for more than a century its inherent authority, as part of the Constitution's grant of original jurisdiction, to equitably apportion interstate streams between States. In Kansas v. Colorado,185 U.S. 125, 145, 22 S.Ct. 552, 46 L.Ed. 838 (1902), we confronted a simple consequence of geography: An upstream State can appropriate all water from a river, thus "wholly depriv[ing]" a downstream State "of the benefit of water" that "by nature" would flow into its territory. In such a circumstance, the downstream State lacks the sovereign's usual power to respond-the capacity to "make war[,] ... grant letters of marque and reprisal," or even enter into agreements without the consent of Congress. Id.,at 143, 22 S.Ct. 552(internal quotation marks omitted). "Bound hand and foot by the prohibitions of the Constitution, ... a resort to the judicial power is the only means left" for stopping an inequitable taking of water. Id.,at 144, 22 S.Ct. 552(quoting Rhode Island v. Massachusetts,12 Pet. 657, 726, 9 L.Ed. 1233 (1838)). This Court's authority to apportion interstate streams encourages States to enter into compacts with each other. When the division of water is not "left to the pleasure" of the upstream State, but States instead "know[ ] that some tribunal can decide on the right," then "controversies will [probably] be settled by compact." Kansas v. Colorado,185 U.S., at 144, 22 S.Ct. 552. And that, of course, is what happened here: Kansas and Nebraska negotiated a compact to divide the waters of the Republican River and its tributaries. Our role thus shifts: It is now to declare rights under the Compact and enforce its terms. See Texas v. New Mexico,462 U.S. 554, 567, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983). But in doing so, we remain aware that the States bargained for those rights in the shadow of our equitable apportionment power-that is, our capacity to prevent one State from taking advantage of another. Each State's "right to invoke the original jurisdiction of this Court [is] an important part of the context" in which any compact is made. Id.,at 569, 103 S.Ct. 2558. And it is "difficult to conceive" that a downstream State "would trade away its right" to our equitable apportionment if, under such an agreement, an upstream State could avoid its obligations or otherwise continue overreaching. Ibid.Accordingly, our enforcement authority includes the ability to provide the remedies necessary to prevent abuse. We may invoke equitable principles, so long as consistent with the compact itself, to devise "fair ... solution[s]" to the state-parties' disputes and provide effective relief for their violations. Texas v. New Mexico,482 U.S. 124, 134, 107 S.Ct. 2279, 96 L.Ed.2d 105 (1987)(supplying an "additional enforcement mechanism" to ensure an upstream State's compliance with a compact). And that remedial authority gains still greater force because the Compact, having received Congress's blessing, counts as federal law. See Cuyler v. Adams,449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981)("[C]ongressional consent transforms an interstate compact ... into a law of the United States"). Of course, that legal status underscores a limit on our enforcement power: We may not "order relief inconsistent with [a compact's] express terms." Texas v. New Mexico,462 U.S., at 564, 103 S.Ct. 2558. But within those limits, the Court may exercise its full authority to remedy violations of and promote compliance with the agreement, so as to give complete effect to public law. As we have previously put the point: When federal law is at issue and "the public interest is involved," a federal court's "equitable powers assume an even broader and more flexible character than when only a private controversy is at stake." Porter v. Warner Holding Co.,328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); see Virginian R. Co. v. Railway Employees,300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937)("Courts of equity may, and frequently do, go much farther" to give "relief in furtherance of the public interest than they are accustomed to go when only private interests are involved").In exercising our jurisdiction, we may "mould each decree to the necessities of the particular case" and "accord full justice" to all parties.Porter,328 U.S., at 398, 66 S.Ct. 1086(internal quotation marks omitted); see Kentucky v. Dennison,65 U.S., at 98. These principles inform our consideration of the dispute before us. III We first address Nebraska's breach of the Compact and Settlement and the remedies appropriate to that violation. Both parties assent to the Special Master's finding that in 2005-2006 Nebraska exceeded its allocation of water by 70,869 acre-feet-about 17% more than its proper share. See Report 88-89; App. B to Reply Brief for Kansas. They similarly agree that this overconsumption resulted in a $3.7 million loss to Kansas; and Nebraska has agreed to pay those damages. See Reply Brief for Kansas 9, 55; Brief for Nebraska 7. But the parties dispute whether Nebraska's conduct warrants additional relief. The Master determined that Nebraska "knowingly exposed Kansas to a substantial risk" of breach, and so "knowingly failed" to comply with the Compact. Report 130, 112; see supra,at 1050 - 1051. Based in part on that finding, he recommended disgorgement of $1.8 million, which he described as "a small portion of the amount by which Nebraska's gain exceeds Kansas's loss." Report 179. But he declined to grant Kansas's request for injunctive relief against Nebraska. See id.,at 180-186. As noted previously, see supra,at 1050 - 1051, each party finds something to dislike in the Master's handling of this issue: Nebraska contests his finding of a "knowing" Compact violation and his view that disgorgement is appropriate; Kansas wants a larger disgorgement award and an injunction regulating Nebraska's 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:
sc_casesourcestate	12	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. SMITH v. BUTLER et al., TRUSTEES. No. 313. Argued March 27-28, 1961. Decided April 24, 1961. William S. Frates argued the cause and filed a brief for petitioner. Harold B. Wahl argued the cause for respondents. With him on the brief was E. F. P. Brigham. Per Curiam. The petition for certiorari in this case raised solely a question regarding the bearing of the Railway Labor Act on the enforcement of the Federal Employers’ Liability Act. The petition was granted. 364 U. S. 869. After full argument and due consideration, it became manifest that the course of litigation and the decisions in the Florida courts did not turn on the issue on the basis of which certiorari was granted. Accordingly, the writ is dismissed. 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_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Joseph D. HANRAHAN, Appellant, v. ST. VINCENT HOSPITAL, Appellee. No. 73-1782. United States Court of Appeals, Eighth Circuit. Submitted May 13, 1974. Decided May 22, 1975. Donald E. O’Brien, Sioux City, Iowa, for appellant. William E. Kunze, Sioux City, Iowa, for appellee. Before JOHNSEN and VOGEL, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge. TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation. TALBOT SMITH, Senior District Judge. Joseph D. Hanrahan (hereinafter plaintiff) appeals from a judgment entered on a jury verdict absolving defendant St. Vincent Hospital from liability for injuries allegedly sustained by him while in the care and custody of the hospital. The condition complained of, a perianal abscess, developed while plaintiff was recuperating from a gall bladder operation. Plaintiff alleged that the abscess was caused by the improper administration of an enema by nurse Ann Wendte, an employee of defendant. In particular it was alleged that the enema was pushed through the skin of the rectum and its contents discharged “where it was not intended to go.” There, was, however, no testimony of a perforation or hole in the rectum, such as would have been made by poking a tool of some kind through the lining of the rectum. It was also testified that the abscesses of this type are not “real uncommon” and may be caused by “a number of different things” such as seeds and fishbones and other objects that may pass through the digestive tract, undigested, and lodge there. In this state of the proofs the plaintiff argues that the accident or occurrence “speaks for itself” and that he was entitled to go to the jury on the theory of res ipsa loquitur. The trial court held not. We affirm. The controlling principles of Iowa law in this regard were recently summarized in Cronin v. Hagan, 221 N.W.2d 748 (Iowa 1974), a case which rejected a similar contention: Before submission of a case on the theory of res ipsa loquitur plaintiff must prove existence of essential facts necessary to bring the rule into operation. They are: (1) exclusive control and management of the instrumentality which caused the injury complained of by the person charged with negligence and (2) an occurrence causing the injury which was of such a type as in the ordinary course of events would not have happened if reasonable care had been used. [Citations omitted.] In the absence of either of these elements the doctrine does not apply. [Citations omitted.] This court must examine the evidence in light of the principle stated above and determine whether plaintiff presented substantial competent evidence of sufficient weight to generate a jury question as to the existence of the foundational facts giving rise to the res ipsa loquitur inference. 221 N.W.2d at 751-52. The trial court held that the showings made were insufficient to entitle the plaintiff to go to the jury upon the first “foundational fact,” the exclusive control of the instrumentality causing the injury. The Supreme Court of Iowa has directly addressed itself to this issue in Lagerpusch v. Lindley, 253 Iowa 1033, 115 N.W.2d 207 (1962) holding that: In the case at bar neither the doctor nor the hospital were in full control of the instrumentalities involved. They could deal with the body of plaintiff’s wife, but they had no control over her physical frailties, allergies, reactions or idiosyncracies. The doctrine of res ipsa loquitur should be used very rarely in medical cases. [Citations omitted.] 233 Iowa at 1038, 115 N.W.2d at 210. (Footnote added.) We find no error in the court’s ruling. Moreover, even should such showing have been held made, plaintiff’s cause is not advanced because of the complete lack of proof as to the second foundational fact required by the Iowa courts: that the injury is of a type usually caused by negligence. As to the second foundational fact the Iowa courts have recognized that even the best professional service may be hindered or defeated by factors outside human control. Thus the doctrine of res ipsa loquitur has been applied sparingly in medical malpractice cases, and only to situations where the injury truly “speaks” of negligence. Wiles v. Myerly, 210 N.W.2d 619, 626 (Iowa 1973) (unusual injury to a healthy part of the body not within the area of surgery); Frost v. Des Moines Still College of Osteopathy & Surgery, 248 Iowa 294, 79 N.W.2d 306 (1957) (unusual injury to a healthy part of the body not within the area of surgery); Whetstine v. Moravec, 228 Iowa 352, 373, 291 N.W. 425, 435 (1940) (root of tooth falling into a man’s lung during extraction operation). Whether the application of an enema in such a manner as to cause a perianal abscess is the type of occurrence which in the ordinary course of things would not happen if reasonable care had been used is in our view a question outside the common experience and competence of laymen and must rest, if at all, upon the testimony of experts. In this regard the plaintiff cites expert testimony that it is highly unusual for a perianal abscess to develop in the ■ place at which his was located. But neither this testimony nor other in the case is probative of the question whether, in the common experience of experts, such an abscess is ordinarily the result of negligence. As was said in Perin v. Hayne, 210 N.W.2d 609, 615 (Iowa 1973): Rarity of the occurrence is not a sufficient predicate for application of res ipsa loquitur. “Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible.” [Citations omitted.] We conclude, therefore, that the trial court properly refused to submit Count II to the jury. See Cronin v. Hagan, supra at 753; Perin v. Hayne, supra at 615. Plaintiff also complains of the court’s rulings with respect to the rebuttal testimony of witness Davenport, excluding parts thereof and admitting others. The discretion of the trial judge with respect to the admission or exclusion of rebuttal testimony is well established, and we find no abuse of such discretion upon the facts before us. The excluded testimony was substantially identical to that elicited from another witness in plaintiff’s case-in-chief. We have carefully reviewed the briefs and record and find no prejudicial error in the other evidentiary rulings which plaintiff challenges. The judgment is Affirmed. . Count I of plaintiff’s Complaint alleged specific acts of negligence; Count II was based on the doctrine of res ipsa loquitur. Jurisdiction in the district court was founded on 28 U.S.C. § 1332. The parties agree that Iowa law governs the controversy. . See Mogensen v. Hicks, 253 Iowa 139, 143, 110 N.W.2d 563, 566 (1961); Gebhardt v. McQuillen, 230 Iowa 181, 186, 297 N.W. 301, 303 (1941); Whetstine v. Moravec, 228 Iowa 352, 369-70, 291 N.W. 425, 433 (1940). . Gebhardt v. McQuillen, 230 Iowa 181, 187, 297 N.W. 301, 304 (1941). . See e. g. Lagerpusch v. Lindley, 253 Iowa 1033, 1038, 115 N.W.2d 207, 210 (1962); Mogensen v. Hicks, 253 Iowa 139, 143, 110 N.W.2d 563, 566 (1961). . See Crane v. Cedar Rapids & Iowa Ry., 160 N.W.2d 838, 847 (Iowa 1968), aff’d, 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969); Robson v. Barnett, 241 Iowa 1066, 1070, 44 N.W.2d 382, 384 (1950). 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_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. Kenneth H. WALTERMYER, Appellant, v. ALUMINUM COMPANY OF AMERICA, Appellee. No. 86-3156. United States Court of Appeals, Third Circuit. Argued Sept. 30, 1986. Decided Nov. 7, 1986. Rehearing and Rehearing En Banc Denied Dec. 1, 1986. Mary T. Koehmstedt (argued), John F. Cordes, Attys., Appellate Staff, Richard K. Willard, Asst. Atty. Gen., Civ. Div., Dept, of Justice, Washington, D.C., J. Alan Johnson, U.S. Atty., Pittsburgh, Pa., for appellant; George Salem, Sol., John Depenbrock, Associate Sol., William H. Berger, Department of Labor, Washington, D.C., of counsel. Ralph W. Waechter (argued), Aluminum Company of America, Pittsburgh, Pa., for appellee. Before WEIS, MANSMANN and HUNTER, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. The question in this case is whether a National Guardsman is entitled to pay from his employer for a holiday that occurs during his leave of absence for the annual two-week military training period. The collective bargaining agreement limited eligibility for holiday pay to individuals who worked during that week, but exempted from that requirement persons in a number of categories who were absent for reasons beyond their control. Because of the similarity between military leave of absence and those exempted classifications, we conclude that the Vietnam Era Veterans’ Readjustment Assistance Act, 38 U.S.C. §§ 2001, et seq., requires that the guardsman be treated the same as those in the exempted classifications who receive holiday pay. Accordingly, we will reverse the district court’s judgment in favor of the employer. After the district court entered summary judgment for defendant employer and denied the plaintiff’s motion, plaintiff appealed. The facts are not in dispute. Plaintiff has been an employee of defendant since 1966. He is also a member of the Pennsylvania Air National Guard, and during its annual two-week training period defendant has granted leaves of absence as required by 38 U.S.C. § 2024(d). In 1982, the two-week training period began on July 3, and included the Independence Day holiday. In 1984, the Memorial Day holiday occurred during the training period that began on May 19. Relying on his union’s collective bargaining agreement, which designated the two days as paid holidays, plaintiff contended that he was entitled to two days’ wages. Defendant refused on the ground that plaintiff had not met the prerequisite to holiday pay set out in the collective bargaining agreement. ALCOA’s agreement with the plaintiff’s union provides that full-time employees receive pay for designated holidays if, during the payroll week (Monday through Sunday) in which the holiday occurs, the employee is: 1. At work; or 2. On a scheduled vacation; or 3. On a layoff under specified conditions; or 4. Performing jury service; or 5. A witness in a court of law; or 6. Qualified for bereavement pay; or 7. Absent because of personal illness and certain sick leave conditions apply- Plaintiff maintained that because he was on active military duty during the holiday weeks he qualified for holiday pay, as did employees in the exempted categories, e.g., jurors or witnesses in court. He asserted that the holiday pay is “an incident or advantage of employment” under the the Vietnam Era Veterans Readjustment Assistance Act, 38 U.S.C. §§ 2021, et seq., and may not be withheld from those on leaves of absence to participate in military training. The district court, relying on Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), concluded that plaintiff could not recover because he sought greater rights than those available to fellow-employees. Although several groups of ALCOA employees received holiday pay despite their absence during the critical weeks, the court observed that plaintiff did not fit within the distinct categories exempted by the collective bargaining agreement. In these circumstances, to require holiday pay for the plaintiff “would enlarge the obligation of the employer beyond the simple statutory command. We find that plaintiff has not suffered any discrimination by being denied any benefit to which other employees are entitled.” Waltermyer v. Aluminum Company of America, 633 F.Supp. 6, 8 (W.D.Pa.1986). The court, therefore, entered judgment for the employer. I On appeal, plaintiff asserts that since some employees receive more favorable treatment than others, the statute requires that he be placed on equal footing with those workers in the privileged group. Alcoa argues that its treatment of plaintiff was consistent with that of all other employees on leaves of absence. The statutory provisions relevant here had their origins in World War II, and originally were designed to provide reemployment for veterans on their return to civilian life. Pub.L. No. 54-783, § 8, 54 Stat. 885, 890 (1940). Various amendments were enacted over the years, and in 1960, National Guardsmen, in addition to reservists, became protected from employment discrimination because of absences from work during short-term military training exercises. 38 U.S.C. 2024(c). Section 2024(d) provides that employees “shall upon request be granted a leave of absence” by their employers for the period of active duty required for training. Once released from active duty, the employees “shall be permitted to return” to their positions “with such seniority, status, pay, and vacation” as the employees would have enjoyed had they not taken leave for military training. The Department of Labor concluded that § 2024(d) inadequately responded to the special problems reservists had encountered and, therefore, proposed legislation that Congress adopted in 1968. Codified at 38 U.S.C. § 2021(b)(3), the amendment provides that a person shall not be “denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” The Supreme Court first construed § 2021(b)(3) in Monroe v. Standard Oil. In earlier cases the Court had reviewed provisions of the Act which applied to veterans with more lengthy service who then returned to civilian life. See, e.g., Alabama Power Co. v. Davis, 431 U.S. 581, 97 S.Ct. 2002, 52 L.Ed.2d 595 (1977) (worker entitled to pension credit for 30-month break in employment spent in military). In reviewing the legislative history of § 2021(b)(3), the Monroe Court observed that the Senate and House Reports agreed on the aim of the statute: to insure reservists “the same treatment afforded their coworkers not having such military obligations.” 452 U.S. at 558, 101 S.Ct. at 2515. The thrust of the legislation, according to the Court, was to prevent discrimination against reservists but not to grant them preferential treatment. Following that theme, the Court found nothing in the legislative history to indicate the statute was designed to give reservists on leave all the incidents of employment accorded working employees, including regular and overtime pay. Monroe had contended that the statute obligated his employer to reschedule his hours of work so that time lost as a result of weekend National Guard duty could be made up on other days of the week. The Court rejected his argument because it “would require work-assignment preferences not available to any nonreservist employee at the respondent’s refinery.” 452 U.S. at 561, 101 S.Ct. at 2517. Before Monroe reached the Supreme Court, courts of appeals had applied the statute in several cases. In Carlson v. New Hampshire Dept. of Safety, 609 F.2d 1024 (1st Cir.1979), the court held that a state trooper’s reassignment to a less desirable shift because of his six-week absences for military training violated § 2021(b)(3). In determining whether the plaintiff was a victim of discrimination, the court of appeals did not compare him to those co-workers away on nonmilitary leave of absence but concluded the standard should be based on the more inclusive class of “co-workers not having [reserve] obligations.” 609 F.2d at 1027. The court in West v. Safeway Stores, Inc., 609 F.2d 147 (5th Cir.1980), adopted a standard that would require an employer “in applying the collective bargaining agreement to treat reservists as if they were constructively present during their reserve duty in similar contexts.” Id. at 150. The dispute in that case centered on the employer’s agreement with the union to provide forty hours of work per week. To the extent that the factual situations are similar, Monroe may have substantially weakened West. Carney v. Cummins Engine Co., 602 F.2d 763 (7th Cir.1979), required an employer to grant reservists opportunities for overtime work equivalent to those available to other employees. The court refused to enforce a provision of the collective bargaining agreement less favorable to reservists than other employees. The facts of Kidder v. Eastern Air Lines, 469 F.Supp. 1060 (S.D.Fla.1978), resemble those presented here. The Kidder collective bargaining agreement denied holiday pay to employees on leave during a holiday. Because the required two-week training program forced the plaintiff to be absent, the employer disallowed holiday pay. The district court held that an employer must treat a National Guardsman as if he had remained at work and must not deprive him of benefits that accrued during that time if due by virtue of mere presence there. Whether Kidder’s broad holding remains valid in light of Monroe’s more restrictive interpretation of the Act is questionable. Interestingly, however, in Eagar v. Magma Copper Company, 389 U.S. 323, 88 S.Ct. 503, 19 L.Ed.2d 557 (1967), the Supreme Court reversed per curiam a court of appeals judgment denying holiday pay to veterans who had returned to employment after two years of military service. The collective bargaining agreement conditioned holiday pay on the employees having been on the payroll continuously for three months before the holiday. The employer contended the veteran was not eligible because he returned to work less than three months before the holiday. Although the court’s order did not explain the reversal, and the case involved veterans rather than reservists, the fact situation itself is significant. Eagar should be compared with Foster v. Dravo Corp., 420 U.S. 92, 95 S.Ct. 879, 43 L.Ed.2d 44 (1975), also a returning veteran case, in which the Court held that an employee earns vacation time as a result of days worked, rather than merely gaining it as a benefit of seniority. Consequently, the veteran’s claim for vacation rights accruing during his eighteen months of military service failed. However, in Coffy v. Republic Steel Corp., 447 U.S. 191, 100 S.Ct. 2100, 65 L.Ed.2d 53 (1980), a veteran was found entitled to supplemental unemployment benefits based partially on time spent in military service. In that instance, the benefit was considered an incident of seniority because the collective bargaining agreement provided credit for “weeks in which the employee is paid for any hours not worked, as for jury duty.” Id. at 202, 100 S.Ct. at 2107. II In addressing the circumstances of this case, we begin by recognizing that plaintiff is not entitled to preferential treatment. As the Senate report observed, § 2021 was designed “to prevent reservists and National Guardsmen not on active duty who must attend week end drills or summer training from being discriminated against because of their Reserve membership.” S.Rep. No. 1477, 90th Cong., 2d Sess. 102 (1968). See also 38 U.S.C. 2021 note. Although the statute establishes equality as the test, we must look to the collective bargaining agreement to determine the rights of ALCOA employees to various benefits. Generally, Alcoa employees do not receive the extra wages unless they have worked every day in the week that the holiday falls. The reason for including this limitation in the collective bargaining agreement is obvious — to protect the employer from excessive absenteeism during a holiday week. Some employees find irresistable the temptation to make it a “long weekend” or stretch the holiday by taking a day or two before or after, even if required to take leave without pay. Employers have found ample basis for restrictions to prevent production disruption during holiday weeks. However, the collective bargaining agreement does reflect employee equities as well; workers whose absence during the holiday week is involuntary and through no fault of their own receive holiday pay. Thus, employees on jury duty or testifying in court are exempt from the work requirement. In those instances the government compels the employees’ attendance and the worker, presumably, does not choose when to comply with this obligation. In addition, the employee does not attempt to enlarge the holiday; this time off would take place no matter when the holiday occurred. Finally, the absence caused by the exempted categories would not generally be of extended duration. In these particular instances the employees also receive their regular pay. The collective bargaining agreement further exempts employees who are absent without pay because of defined illness or layoff. Again, the common thread is the lack of choice by the employees. Each of these characteristics holds true when the leave of absence is for military training. Particularly important is the fact that the guardsmen have no individual voice in selecting the weeks they will be on active duty. Military superiors set the time for training which is both compulsory and short. Although not listed in the collective bargaining agreement, military leave shares the essential features of those exemptions designated for employees not in the reserve. Thus, we hold that plaintiff must receive pay for those holidays occurring while he is on active duty. As noted earlier, we are conscious that the plaintiff’s rights must equal, and not exceed those of employees covered by the collective bargaining agreement. However, as the Court stated in Accardi v. Pennsylvania R.R. Co., 383 U.S. 225, 229, 86 S.Ct. 768, 771, 15 L.Ed.2d 717 (1966): “employers and unions are [not] empowered by the use of transparent labels and definitions to deprive a veteran [or reservist] of substantial rights guaranteed by the Act.” Viewed in this light, relieving those on military leave from the work requirement merely establishes equality for National Guardsmen and reservists, not preferential treatment. Analysis of the reason for the collective bargaining agreement exemptions and their prerequisites demonstrates that the group to which they apply provides the appropriate standard against which the guardsman’s claims are to be measured, rather than the larger group of all employees on leaves of absence. It is important, too, that work during a holiday week be seen only as establishing eligibility for holiday pay, not compensation for the other days not worked. In this respect, the guardsman here seeks less than employees called for jury duty who are entitled to their regular wages in addition to juror fees. We do not confine the group establishing the appropriate standard of comparison here to those who receive their regular wages while away from work. We include those who do not, but are nevertheless entitled to holiday pay under the terms of the collective bargaining agreement. We limit our holding to the claim to holiday pay presented here. We conclude, therefore, that plaintiff has established his right to holiday pay under the provisions of the Act; accordingly, the judgment will be reversed and the case will be remanded to the district court for entry of a judgment in favor of plaintiff. . Section 2024(d) speaks to members of the reserve forces not covered by subsection (c), which in turn applies to those ordered to periods of service longer than twelve consecutive weeks. Section 2024(f) says that a National Guard member’s full-time training constitutes active duty for purposes of subsection (d). In this context, therefore, section 2024(d) is applicable to members of the National Guard called to full-time training for less than three consecutive months. Subsection (c) provides more extensive protection for reservists or guardsmen called for longer than twelve consecutive weeks; read as a whole, therefore, the statute suggests a distinction in benefits for Guardsmen called for the usual two-week training periods and those called for more than twelve weeks. The situation is far from clear and it must be noted that section 2021(b)(3) (pertaining to reservists’ reemployment rights after training) does not differentiate between short and long terms of service. . This provision applies to both reservists and National Guardsmen. Monroe v. Standard Oil, 452 U.S. at 552 n. 2, 101 S.Ct. at 2512 n. 2. . We realize a planned vacation is different from the other exceptions on the list. Vacation is earned time away from work, and this exception merely recognizes that an employee should not be prejudiced, in the form of lost holiday pay, for taking an earned vacation. Question: What is the number of judges who dissented from the majority? Answer:
songer_casetyp1_7-3-5	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 - misc economic regulation and benefits". EWING v. GARDNER. No. 11188. United States Court of Appeals Sixth Circuit. Dec. 20, 1950. Joseph B. McGrath, Washington, D. C. (H. G. Morison, Washington, D. C., Ray J. O’Donnell, Frank J. Richter, Cincinnati, Ohio, on the brief; Edward H. Hickey, Joseph B. McGrath, Attorneys, Dept, of Justice, Washington, D. C., Ira Z. Acoff, Leonard B. Zeisler, Attorneys, Fed. Security Agency, Washington, D. C., of counsel), for appellant. Theodore F. Gardner, Cincinnati, Ohio (Theodore F. Gardner, Cincinnati, Ohio), on the brief, for appellee. Before MARTIN, McALLISTER and MILLER, Circuit Judges. PER CURIAM. The appellant, as Federal Security Administrator, appeals from a judgment of the District Court which reversed a decision of the Federal Security Administrator denying the claim of appellee as executor of the estate of Charles L. Warner, deceased, to certain primary insurance benefits of said deceased as a wage-earner under the Social Security Act, as amended, 42 U.S.C.A. § 301 et seq. For the detailed facts and the reasons for the ruling, see Gardner v. Ewing, 88 F.Supp. 315. On July 11, 1944, Warner, the wage-earner, being over 65 years of age, applied for primary insurance benefits under Section 202(a) of the Social Security Act as amended, Section 402(a), Title 42 U.S. C.A. The . claim was disallowed because the wage-earner failed to furnish requested proof of his- age. Warner thereafter died on April 19, 1946. On September 30, 1946, the appellee as executor of the wage-earner’s estate filed with the Social Security Administration his application for a lump sum benefit and all other benefits payable to the estate based upon the deceased wage-earner’s wage record. The appellee also submitted satisfactory documentary evidence of the wage-earner’s date of birth, showing that he became 65 years of age on September 11, 1938. The Social Security Administration awarded the appellee a lump sum death payment, but ruled that the appellee as executor of the estate of the deceased wage-earner was not entitled to receive primary insurance benefits under the Act. The appellee sought a review of this ruling by filing the present action in the U. S. District Court. Section 405(g), Title 42 U.S.C.A. The District Court reversed the ruling and held that the appellee was entitled to recover from the appellant the primary insurance benefits payable under the Act for the period of July 1944 to March 1946 inclusive, and remanded the case to the Social Security Administration for computation of the benefits. The judgment also directed that the appellant pay the costs olf the action. This appeal followed. Section 202(a) of the Social Security Act as amended, Section 402(a), 42 U.S.C.A., under which the claim is made, requires three conditions to exist to entitle the wage-earner to the monthly primary insurance benefit, namely, (1) that he “is a fully insured individual”, (2) “has attained the age of sixty-five,” and (3) “has filed application for primary insurance benefits”. If these three facts exist he is entitled by the wording of the statute “to receive a primary insurance benefit * * * for each month, beginning with the month in which such individual becomes so entitled to such insurance benefits * * Appellant contends that the wage-earner did not become entitled to the primary insurance benefit because he did not prove before his death that he was sixty-five when he filed his application. We do not agree. The statute refers to the existence of the fact, not to the furnishing oif evidence to prove the fact if its existence should be questioned. Satisfactory proof was subsequently furnished to the Administrator. Accordingly, on July 11, 1944, when the application was filed the three conditions or facts necessary under the statute to entitle the wage-earnfer to receive the monthly primary insurance benefit actually existed. His right to the monthly primary insurance benefit accrued at that time. There is nothing in the Act which requires that proof of the fact that the applicant has attained the age of sixty-five be furnished during the applicant’s lifetime. In the absence of an express provision in the statute to the contrary, the furnishing of such proof is a condition precedent to payment, but not to liability. Love v. Northwestern National Ins. Co., 5 Cir., 119 F.2d 251; Lydon v. New York Life Ins. Co., 8 Cir., 89 F.2d 78. Compare: Patterson, Exec. v. National Life & Accident Ins. Co., 6 Cir., 183 F.2d 745; Ewing v. Risher, 10 Cir., 176 F.2d 641. Appellant relies upon Social Security Administration Regulation No. 3, Title 20 CFR, Cum.Supp., Ch. Ill, Part 403. Section 403.704(b) of the Regulation provides — ’“Whenever, after the filing of an application for benefits * * , additional evidence or information is asked for by the Board, * * the applicant’s disregard thereof for a period of one year * * * shall be considered as an abandonment of such application or request. Thereafter the Board will take further action only upon the filing of a new application, or request unless it is shown that such disregard by the application was due to a cause or causes not reasonably within his control. * * Section 205(a) of the Social Security Act as amended, Section 405(a), Title 42 U.S.C.A. gives the Board authority to make rules and regulations and to establish procedures not inconsistent with the provisions of the Act, which are necessary or appropriate to carry out such provision. The appellant contends that under the Regulation the wage-earner abandoned his application and that appellee’s present claim is barred. The District Judge held the Regulation invalid, in that it is inconsistent with the provisions oil the Act. There is nothing in the Act which provides for forfeiture for failure to' prosecute with diligence. We are of the opinion that it does not necessarily follow that the Regulation is invalid. If it is construed as cancelling or forfeiting rights which previously accrued upon the filing of the application, it is an invalid ■restriction placed upon the rights conferred by the statute. 'But if it is construed as dismissing without prejudice a proceeding to enforce existing rights and thus, for administrative purposes, clearing the files oif pending but unprosecuted proceedings without a forfeiture of the existing rights, it is a reasonable, valid administrative provision. In either event, it is not a bar to the present action. There is nothing in the Act which during the lifetime of the wage-earner bars the prosecution of a claim for primary benefits after a previous proceeding has been dismissed without prejudice. If the wage-earner had a valid claim at the time of his death, his administrator can enforce that claim as an asset of the estate by proper proceeding for the benefit of the estate. We do not agree with appellant’s contention that appellee, as Executor, can not prosecute the claim. Although he is not a beneficiary designated by the Act, he is enforcing the claim of a beneficiary who is designated by the Act. Beers v. Federal Security Administrator, 2 Cir., 172 F.2d 34; Baumet v. United States, 2 Cir., 177 F.2d 806. The right of the wage-earner to the primary benefit is not a gratuity, but is a property right which can be enforced by court action. Dismuke v. United States, 297 U.S. 167, 170, 56 S.Ct. 400, 80 L.Ed. 561; Lynch v. United States, 292 U.S. 571, 576-577, 54 S.Ct. 840, 78 L.Ed. 1434. Section 207 of the Act, Sec. 407, Title 42 U.S.C.A. prohibiting the assignment of any future payment is not applicable to the present case which deals with accrued payments. The right to assess costs against the Administrator has been previously upheld by this Court in a similar situation. Walling v. Crown Overall Mfg. Co., 6 Cir., 149 F.2d 152. See also Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595. We recognize the contrary ruling in Walling v. Norfolk Southern Ry. Co., 4 Cir., 162 F.2d 95 and Walling v. Frank Adam Electric Co., 8 Cir., 163 F.2d 277, but feel that the prior ruling of our own circuit is controlling. The judgment is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"? A. social security benefits (including SS disability payments) B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps) C. state or local economic regulation D. federal environmental regulation E. federal consumer protection regulation (includes pure food and drug, false advertising) F. rent control; excessive profits; government price controls G. federal regulation of transportation H. oil, gas, and mineral regulation by federal government I. federal regulation of utilities (includes telephone, radio, TV, power generation) J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government K. civil RICO suits L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above) M. admiralty - seamens wage disputes N. admiralty - maritime contracts, charter contracts O. admiralty other Answer:
sc_casesource	024	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. MEDELLIN v. DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION No. 04-5928. Argued March 28, 2005 Decided May 23, 2005 Donald Francis Donovan argued the cause for petitioner. With him on the briefs were Carl Micarelli, Catherine M. Amirfar, Thomas J Bollyky, and Gary Taylor. R. Ted Cruz, Solicitor General of Texas, argued the cause for respondent. With him on the brief were Greg Abbott, Attorney General, Barry R. McBee, First Assistant Attorney General, Don Clemmer, Deputy Attorney General, and Sean D. Jordan, Kristofer S. Monson, and Adam W. Aston, Assistant Solicitors General. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clem ent, Assistant Attorney General Wray, Irving L. Gornstein, and Robert J. Erickson. Briefs of amici curiae urging reversal were filed for the American Bar Association by Robert J. Grey, Jr., and Jeffrey L. Bleich; for Bar Associations et al. by Kevin R. Sullivan, William J. Aceves, and Clifford S. Anderson; for Foreign Sovereigns by Asim M. Bhansali and Steven A. Hirsch; for Former United States Diplomats by Harold Hongju Koh, Donald B. Ayer, and William K. Shirey II; for the Government of the United Mexican States by Sandra L. Babcock; for NAFSA: Association of International Educators et al. by Stephen F. Hanlon; and for Ambassador L. Bruce Laingen et al. by Joseph Margulies. Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, and J. Clayton Crenshaw and Charles B. Campbell, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Bill Lockyer of California, John W. Suthers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Thur-bert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Phill Kline of Kansas, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett of Pennsylvania, Henry D. McMaster of South Carolina, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, and Judith Williams Jagdmann of Virginia; for the Alliance Defense Fund by Nelson P. Miller, William Wagner, and Benjamin Bull; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Liberty Legal Institute by Kelly Shackelford; for the National District Attorneys’ Association by Charles C. Olson and Thomas J. Charron; for Professors of International Law et al. by Paul B. Stephan; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae were filed for the European Union et al. by S. Adele Shank and John B. Quigley; for International Law Experts et al. by Lori Fisler Damroseh and Charles Owen Verrill, Jr.; for the Mountain States Legal Foundation by William Perry Pendley; and for Senator John Cornyn by Charles J. Cooper, Vincent J. Colatriano, and David H. Thompson. Per Curiam. We granted certiorari in this case to consider two questions: first, whether a federal court is bound by the International Court of Justice’s (ICJ) ruling that United States courts must reconsider petitioner José Medellin’s claim for relief under the Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U. S. T. 77, 100-101, T. I. A. S. No. 6820, without regard to procedural default doctrines; and second, whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation, to the ICJ’s judgment. 543 U. S. 1032 (2004). After we granted certiorari, Medellin filed an application for a writ of habeas corpus in the Texas Court of Criminal Appeals, relying in part upon a memorandum from President George W. Bush that was issued after we granted certiorari. This state-court proceeding may provide Medellin with the very reconsideration of his Vienna Convention claim that he now seeks in the present proceeding. The merits briefing in this case also has revealed a number of hurdles Medellin must surmount before qualifying for federal habeas relief in this proceeding, based on the resolution of the questions he has presented here. For these reasons we dismiss the writ as improvidently granted. See Ticor Title Ins. Co. v. Brown, 511 U. S. 117, 121-122 (1994) (per curiam); The Monrosa v. Carbon Black Export, Inc., 359 U. S. 180, 183-184 (1959); Goins v. United States, 306 U. S. 622 (1939). Medellin, a Mexican national, confessed to participating in the gang rape and murder of two girls in 1993. He was convicted and sentenced to death, and the Texas Court of Criminal Appeals affirmed on direct appeal. Medellin then filed a state habeas corpus action, claiming for the first time that Texas failed to notify him of his right to consular access as required by the Vienna Convention. The state trial court rejected this claim, and the Texas Court of Criminal Appeals summarily affirmed. Medellin then filed this federal habeas corpus petition, again raising the Vienna Convention claim. The District Court denied the petition. Subsequently, while Medellin’s application to the Court of Appeals for the Fifth Circuit for a certificate of appealability was pending, see 28 U. S. C. § 2253(c), the ICJ issued its decision in Case Concerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), in which the Republic of Mexico had alleged violations of the Vienna Convention with respect to Medellin and other Mexican nationals facing the death penalty in the United States. The ICJ determined that the Vienna Convention guaranteed individually enforceable rights, that the United States had violated those rights, and that the United States must “provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals” to determine whether the. violations “caused actual prejudice,” without allowing procedural default rules to bar such review. Id., ¶¶ 121-122, 153(a). The Court of Appeals denied Medellin’s application for a certificate of appealability. It did so based on Medellin’s procedural default, see Breard v. Greene, 523 U. S. 371, 375 (1998) (per curiam), and its prior holdings that the Vienna Convention did not create an individually enforceable right, see, e. g., United States v. Jimenez-Nava, 243 F. 3d 192, 195 (CA5 2001). 371 F. 3d 270 (CA5 2004). While acknowledging the existence of the ICJ’s Avena judgment, the court gave no dispositive effect to that judgment. More than two months after we granted certiorari, and a month before oral argument in this case, President Bush issued a memorandum that stated the United States would discharge its international obligations under the Avena judgment by “having State courts give effect to the [ICJ] decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.” George W. Bush, Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae 9a. Relying on this memorandum and the Avena judgment as separate bases for relief that were not available at the time of his first state habeas corpus action, Medellin .filed a successive state application for a writ of habeas corpus just four days before oral argument here. That state proceeding may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required, and that Medellin now seeks in this proceeding. This new development, as well as the factors discussed below, leads us to dismiss the writ of certiorari as improvidently granted. There are several threshold issues that could independently preclude federal habeas relief for Medellin, and thus render advisory or academic our consideration of the questions presented. These issues are not free from doubt. First, even accepting, arguendo, the ICJ’s construction of the Vienna Convention’s consular access provisions, a violation of those provisions may not be cognizable in a federal habeas proceeding. In Reed v. Farley, 512 U. S. 339 (1994), this Court recognized that a violation of federal statutory rights ranked among the “nonconstitutional lapses we have held not cognizable in a postconviction proceeding” unless they meet the “fundamental defect” test announced in our decision in Hill v. United States, 368 U. S. 424, 428 (1962). 512 U. S., at 349 (plurality opinion); see also id., at 355-356 (Scalia, J., concurring in part and concurring in judgment). In order for Medellin to obtain federal habeas relief, Medellin must therefore establish that Reed does not bar his treaty claim. Second, with respect to any claim the state court “adjudicated on the merits,” habeas relief in federal court is available only if such adjudication “was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U. S. C. § 2254(d)(1); see Woodford v. Visciotti, 537 U. S. 19, 22-27 (2002) (per curiam). The state habeas court, which disposed of the case before the ICJ rendered its judgment in Avena, arguably “adjudicated on the merits” three claims. It found that the Vienna Convention did not create individual, judicially enforceable rights and that state procedural default rules barred Medellin’s consular access claim. Finally, and perhaps most importantly, the state trial court found that Medellin “fail[ed] to show that he was harmed by any lack of notification to the Mexican consulate concerning his arrest for capital murder; [Medellin] was provided with effective legal representation upon [his] request; and [his] constitutional rights were safeguarded.” App. to Pet. for Cert. 56a. Medellin would have to overcome the deferential standard with regard to all of these findings before obtaining federal habeas relief on his Vienna Convention claim. Third, a habeas corpus petitioner generally cannot enforce a “new rule” of law. Teague v. Lane, 489 U. S. 288 (1989). Before relief could be granted, then, we would be obliged to decide whether or how the Avena judgment bears on our ordinary “new rule” jurisprudence. Fourth, Medellin requires a certificate of appealability in order to pursue the merits of his claim on appeal. 28 U. S. C. § 2253(c)(1). A certificate of appealability may be granted only where there is “a substantial showing of the denial of a constitutional right.” § 2253(c)(2) (emphasis added). To obtain the necessary certificate of appealability to proceed in the Court of Appeals, Medellin must demonstrate that his allegation of a treaty violation could satisfy this standard. See Slack v. McDaniel, 529 U. S. 473, 483 (2000). Fifth, Medellin can seek federal habeas relief only on claims that have been exhausted in state court. See 28 U. S. C. §§ 2254(b)(1)(A), (b)(3). To gain relief based on the President’s memorandum or IC J judgments, Medellin would have to show that he exhausted all available state-court remedies. In light of the possibility that the Texas courts will provide Medellin with the review he seeks pursuant to the Avena judgment and the President’s memorandum, and the potential for review in this Court once the Texas courts have heard and decided Medellin’s pending action, we think it would be unwise to reach and resolve the multiple hindrances to dispositive answers to the questions here presented. Accordingly, we dismiss the writ as improvidently granted. It is so ordered. Of course Medellin, or the State of Texas, can seek certiorari in this Court from the Texas courts’ disposition of the state habeas corpus application. In that instance, this Court would in all likelihood have an opportunity to review the Texas courts’ treatment of the President’s memorandum and Case Concerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128 (Judgment of Mar. 31), unencumbered by the issues that arise from the procedural posture of this action. The Federal District Court reviewing that finding observed: “Medellin’s allegations of prejudice are speculative. The police officers informed Medellin of his right to legal representation before he confessed to involvement in the murders. Medellin waived his right to advisement by an attorney. Medellin does not challenge the voluntary nature of his confession. There is no indication that, if informed of his consular rights, Medellin would not have waived those rights as he did his right to counsel. Medellin fails to establish a ‘causal connection between the [Vienna Convention] violation and [his] statements.’” App. to Pet. for Cert. 84a-85a (brackets in original). In Breard v. Greene, 523 U. S. 371 (1998) (per curiam), we addressed the claim that Virginia failed to notify a Paraguayan national of his Vienna Convention right to consular access. In denying various writs, motions, and stay applications, we noted that the Vienna Convention “arguably confers on an individual the right to consular assistance following arrest”; that Virginia’s procedural default doctrine applied to the Vienna Convention claim; and that a successful Vienna Convention claimant likely must demonstrate prejudice. Id., at 375-377. At the time of our Breard decision, however, we confronted no final ICJ adjudication. On March 8, 2005, Medellin filed a successive state habeas action based on Tex. Code Crim. Proe. Ann., Art. 11.071, § 5(a)(1) (Vernon 2005), claiming that both the President’s memorandum and the Avena judgment independently require the Texas court to grant review and reconsideration of his Vienna Convention claim. See Subsequent Application for Post-Conviction Writ of Habeas Corpus in Ex Parte Medellin, Trial Cause Nos. 67,5429 and 67,5480 (Tex. Crim. App.), p. 6 (filed Mar. 24,2005) (“First, the President’s determination requires this Court to comply with the Avena Judgment and remand Mr. Medellin’s case for the mandated review and reconsideration of his Vienna Convention claim. Second, the Avena Judgment on its own terms provides the rule of decision in Mr. Medellin’s case and should be given direct effect by this Court”). 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:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America v. Elias SAKA, Appellant, No. 14871. United States Court of Appeals Third Circuit. Argued Nov. 17, 1964. Decided Dec. 17, 1964. David F. Price, Brooklyn, N. Y. (Price & Iovine, c/o Robert I. Weiswasser, Brooklyn, N. Y., on the brief), for appellant. David M. Satz, Jr., U. S. Atty., Stanley C. Van Ness, Asst. U. S. Atty., Newark, N. J., on the brief, for appellee. Before MARIS, STALEY and GA-NE Y, Circuit Judges. MARIS, Circuit Judge. The defendant, Elias Saka, appeals from a judgment entered in the District Court for the District of New Jersey on a jury verdict of guilty under two counts on an indictment. The first count charged him with possession of goods stolen from an interstate shipment exceeding $100 in value, knowing them to have been stolen, in violation of 18 U.S.C. § 659, and the second with transporting from Philadelphia, Pennsylvania, to Eng-lishtown, New Jersey, and Farmingdale, New Jersey, approximately 4,000 dozen pairs of nylon hosiery, valued in excess of $5,000, knowing them to have been •stolen, in violation of 18 U.S.C. § 2314. The defendant was convicted and sentenced to imprisonment for one year on each count to run concurrently. Execution of the sentence was suspended and the defendant was placed on probation for a period of five years. In addition, a fine of $5,000 on each count was imposed upon him. Upon this appeal the defendant asserts that the evidence was insufficient to sustain the verdict of the jury, that his trial was unfair and that his constitutional rights were violated. We find no merit in any of these contentions. It appeared from the evidence produced by the Government that over 4,000 dozen pairs of nylon hosiery shipped by two mills in Charlotte, North Carolina, to the G. R. Kinney Company, Camp Hill, Pennsylvania, had been stolen in transit. A trailer containing the shipment disappeared from a truck terminal in New York City on March 6, 1961, and was recovered empty four days later in Newark, New Jersey. The cost of the stockings to the Kinney Company ranged from •'$4.70 to $9.25 per dozen; the retail prices ranged from 79 cents to $1.39 a pair. There were in the shipment 3,875 dozen pairs of long hose shipped by Davenport Hosiery Mills and 250 dozen pairs of over-the-knee hosiery Mill Style 810, •Customer’s No. 675, shipped by Chad-■bourn-Gotham, Inc. One stocking in •each pair of the long hose had the Kinney ‘Company’s registered trade name “Rev-ette” imprinted on the welt together with •data as to the type of the hose. No similar imprint appeared on the over-the-knee hose, the name and type being printed on a cardboard header which was inserted at the top. It appeared that the defendant was engaged in the business of selling merchandise, including nylon hosiery, at retail over the counter or at auction at several markets located in New Jersey. Emil R. Tetzner, the proprietor of a hosiery dye and finishing plant in Philadelphia, testified that the defendant and Joseph Brown brought between 3,000 and 4,000 dozen pairs of hosiery to his place of business and engaged him to remove the brand name “Revette” therefrom and to substitute the name “Nylons Unlimited” and repackage the hosiery. The hose were delivered to the dye house and about 1,500 dozen pairs were processed but the process proved difficult and about four weeks later the defendant removed all the hosiery. He paid Tetzner $1,045.00 for the work at the rate of 70 cents per dozen pairs. During the time that the hose were in the dye house one of the dye house employees found in a carton containing over-the-knee hosiery an invoice which referred to 250 dozen pairs of hose, Mill Style 810, Customer’s No. 675, sold and shipped to G. R. Kinney Company by Chadbourn-Gotham, Inc., Charlotte, N. C. On June 10, 1961, after the defendant had admitted to F.B.I. agents that he had sold Revette brand hosiery but stated that he had none left, 74 dozen pairs were found exposed for sale by an agent at the Col-lingswood, New Jersey, auction market. The defendant’s truck driver Dennis J. Slowey, testified that he had helped to remove cartons containing Revette brand hosiery from the dye house in Philadelphia, had loaded them into the defendant’s panel body truck and had driven the truck a few blocks away where it was left parked, Slowey and the defendant returning to New Jersey in the defendant’s automobile. Three or four days later he and the defendant returned to Philadelphia and Slowey drove the truck back to New Jersey, where, he at first testified, he unloaded the hosiery from the truck at the defendant’s auction premises at Englishtown. Under cross-examination Slowey stated that he drove the truck from Philadelphia to a lot near the defendant’s home in Neptune, New Jersey, and that he did not examine the contents of the truck. The defendant testified in his own defense that he had purchased two lots of Revette hosiery from a person named Horowitz. He said that he wanted to use the first lot of 1,100 dozen pairs in his mail order business under his trade name “Nylons Unlimited” and accordingly brought these stockings in his truck from Englishtown, New Jersey, to the Tetzner dye house in Philadelphia to have the brand name Revette removed and Nylons Unlimited substituted. He said that there were difficulties in doing the work and that only 93 dozen pairs were worked upon. About the third of April he removed the hosiery from the dye house and it was loaded on his truck by Slowey who parked the truck in Philadelphia after which they both returned to New Jersey in the defendant’s automobile. On the following day, the defendant said, he drove back to Philadelphia, drove the truck to the place of business of a friend in Philadelphia to whom he then and there sold and delivered the entire lot of more than 1,000 dozen pairs for $4.00 a dozen which was paid in cash. The defendant further testified that the second lot of 700 dozen pairs of Revette hosiery which he had purchased from Horowitz was delivered to him at the Englishtown market on March 18th for which he paid cash in the sum of $2,100.00. This Revette hosiery, he said, was openly exhibited and sold at auction or over the counter by him at his several places of business. We are satisfied that the jury could properly find from the evidence, as it did, that the hosiery found in the defendant’s possession was that stolen while in transit in interstate commerce to the G. R. Kinney Company and that the defendant knew that it was stolen merchandise. The defendant’s conviction on count one must accordingly be sustained. As an additional ground for reversal of his conviction under count two the defendant alleges that the proof of transportation from Pennsylvania to New Jersey of the hosiery worked upon in the Philadelphia dye house was insufficient. It is true that the witness Slowey was less than clear and consistent in his testimony as to the point in New Jersey to which he drove the defendant’s truck from Philadelphia and as to whether he knew what the truck contained. There was, however, evidence that the defendant brought to Philadelphia over 3,000 dozen pairs of the hosiery, that 1,500 or 2,000 dozen pairs were returned to him by Tetzner with the trade name “Rev-ette” intact and that hosiery with that trade name was subsequently offered for sale by him in New Jersey. It was for the jury to resolve the inconsistencies in Slowey’s testimony in the light of the other evidence and we cannot say that they erred in finding that the hosiery in question was transported in interstate commerce from Pennsylvania to New Jersey. The defendant urges that the jury erred in not accepting his uncontradicted testimony that he sold this hosiery to a friend in Philadelphia and did not take it back to New Jersey. We cannot agree. For it was within the province of the jury to reject the defendant’s testimony even though uncontradieted if in the light of the other evidence in the case it found that testimony to be unbelievable. Moreover there is sufficient support in this record for the jury’s verdict on count two even if the proof as to transportation of the stolen hosiery from Pennsylvania to New Jersey had wholly failed. For the gravamen of the offense prohibited by 18 U.S. C. § 2314 and charged in count two is the transportation in interstate commerce of goods with the knowledge that they had been secured by unlawful means. The defendant himself freely admitted in his testimony that the hosiery in question had been transported by him from New Jersey to the dye house in Philadelphia, which was clearly a transportation in interstate commerce. This in itself was sufficient to sustain the conviction. United States v. Garvey, 2 Cir. 1945, 150 F.2d 767, 768. The defendant further contends that the district court erred in denying his motion to suppress certain evidence which, he asserts, was procured by F.B.I. agents by an unreasonable search without a search warrant. It goes without saying that the constitutional provision against unreasonable searches and seizures may not be relaxed, and that when officers desire to search a person’s home they must have either a search warrant or a voluntary permission. United States v. Jeffers, 1951, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, 64; Pekar v. United States, 5 Cir. 1963, 315 F.2d 319. But, on the other hand, it has been held that if an officer sees the fruits of a crime, or what he has good reason to believe to be the fruits of a crime, freely lying upon a suspect’s property, the officer is not required to look the other way or to disregard the evidence, merely because he is not armed with a search warrant. Ellison v. United States, 1953, 93 U.S. App.D.C. 1, 206 F.2d 476. The evidence which the defendant sought to have suppressed was two cardboard cartons, a bill pertaining to 700 dozen pairs of stockings, the 74 dozen pairs of Revette hosiery taken by the agents at Collingswood and a receipt for these stockings signed by both the defendant and his wife. At the hearing on the motion to suppress, Agent Kirtley testified that the defendant freely and voluntarily cooperated with him in all phases of his investigation. The defendant pointed out the cartons, in fact emptying them of other goods which had been placed in them, so that the agent could examine them, and the stockings which were seized were publicly exposed for sale at the market. The district court found that the taking of these items was not the result of a search. And it further found that the bill for the 700 dozen pairs of stockings and the signed receipt for the 74 dozen pairs taken at Collingswood were given to the agents with the defendant’s consent. Our examination of the record satisfies us that the district court did not err in denying the motion to suppress the evidence in question. We have considered the other contentions made by defendant but find them so lacking in merit as to require no discussion. The judgment of the district court will be affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_usc2sect	1337	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Harry SERIO, Appellant, v. Milton J. LISS, President of Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Arthur J. Goldberg, Secretary of Labor of the United States. No. 13571. United States Court of Appeals Third Circuit. Argued June 9, 1961. Decided Nov. 17, 1961. Thomas L. Parsonnet, Newark, N. J. (Parsonnet, Weitzman & Oransky, Newark, N. J., on the brief), for appellant. Marvin S. Shapiro, Washington, D. C. (William H. Orrick, Jr., Asst. Atty. Gen., Chester A. Weidenburner, U. S. Atty., Newark, N. J., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., Charles Donahue, Sol., James R. Beaird, Asst. Sol., Louis Weiner, Deputy Asst. Sol., Dept. of Labor, Washington, D. C., on the brief), for appellee. Before BIGGS, Chief Judge, and HASTIE and FORMAN, Circuit Judges. BIGGS, Chief Judge. Serio, an elected “Business Agent” of Local No. 478, sued Liss, its President, to restrain the Local from discharging him as business agent pursuant to Section 504 of the Labor-Management Reporting and Disclosure Act of 1959 (The Land-rum-Griffin Act), 29 U.S.C.A. § 504. Though he, Serio, had been convicted of the crime of atrocious assault and battery and had served a term of imprisonment, he asserts that the five-year cleansing period, prescribed by Section 504, has expired and he is therefore entitled to retain his office. Serio seeks a declaratory judgment to such effect. The Secretary of Labor was permitted to intervene as a party defendant by the court below. While no motion for summary judgment was filed, the case was treated by the court below as if cross motions for summary judgment had been made by the parties. The court below decided that Serio was holding office illegally. See 189 F.Supp. 358 (1960). The court below had jurisdiction of the suit at bar by virtue of Section 504(a) of the Act, 29 U.S.C.A. § 504(a), and Section 1337, Title 28 U.S.C. In our opinion the case at bar is one in which the cause of action “arises under” a law of the United States, inasmuch as Serio’s claim for declaratory relief is based directly upon Section 504(a) of the Act. In so stating we have not overlooked the carefully reasoned opinions of Judge Clary in Strauss v. International Brotherhood of Teamsters, et al., 179 F.Supp. 297 (D.C.E.D.Pa.1959) and of Chief Judge Thomsen in Jackson v. Martin Co., 180 F.Supp. 475 (D.C.Md.1960), based in large part on Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). In Gully, Mr. Justice Cardozo stated: “How and when a case arises ‘under the Constitution or laws of the United States’ has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.” The court below, in declining to follow the reasoning of the Strauss and Jackson cases, draws support for the finding of jurisdiction from Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 31, 29 L.Ed. 388 (1885). The Supreme Court said by Mr. Chief Justice Waite: “The character of a case is determined by the questions involved. * * * If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of * * * a law of the United States, or sustained by the opposite construction, the case will be one arising under the * * * laws of the United States, within the meaning of that term as used in the act * * ; otherwise not.” The Chief Justice cited Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824), Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821), and numerous other authorities. We think that the sound but contrasting principles of Gully and Starin are sometimes construed, respectively, too narrowly or too broadly, to reflect accurately the reach of federal question jurisdiction under Sections 1331 and 1337, Title 28 U.S.C. The Starin rule is not completely compatible with those decisions denying jurisdiction in which the plaintiff’s claim is derived from or is dependent upon state law, even though the construction and constitutionality of a federal statute are the decisive issues in the case. See, e. g., Louisville & Nashville R. R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Cf. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). On the other hand, the Supreme Court has recognized exceptions to the Gully standard also. Thus, jurisdiction was not questioned in Jewell Ridge Coal Co. v. United Mine Workers, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534 (1945), or Tennessee Coal etc. Co. v. Muscoda Local, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), where the plaintiff employers sought a declaratory judgment negating the federal right asserted by the defendant employees under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. And, when the plaintiff voiced constitutional objections and attempted to enjoin the defendant from carrying out a federal duty prescribed by the Agricultural Adjustment Act, 7 U.S.C.A. §§ 1311-1314, the Court in Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1939), expressly bottomed jurisdiction on Section 1337. We think that the facts of the instant case are jurisdietionally indistinguishable from those in Mulford and that the court below had jurisdiction under Section 1337. We realize of course that there are claims directly founded on federal law, in which the national interest is not large, and that to bring all of these into the federal trial courts, would overburden these tribunals to an extent which might cripple their efficiency. But we cannot doubt that Congress considered the provisions of Section 504(a) of the Act as important in effecting a national purpose. By the declarations of findings, purposes, and policy of Section 2 of the Act, 29 U.S.C.A. § 401, Congress made it clear that it was its intention that labor union officials should adhere to the “highest standards of responsibility and ethical conduct in administering the affairs of their organizations”, and that there had been failures to meet those high standards of responsibility and of ethical conduct. We believe that Congress intended the provisions of Section 504(a) to have an antiseptic and purifying effect on the conduct of union affairs by union officials and officers and made clear that an individual with a criminal record should not be employed in a position of union responsibility until he had reestablished his probity by a five year penitential period. Congress made this a national policy and in our opinion deemed that policy to be of such importance as to permit its application through adjudications by the national courts. At first examination of the record this appeal seems to be moot. Serio’s term as business agent will be at an end on December 31, 1962. The five-year interdiction period of Section 504(a) came to an end no later than December 31, 1960, whether one accepts the view of the Secretary that enlargement of custody by parole is not termination of imprisonment or Serio’s view that it is. But Serio was removed from the payroll when the temporary restraint imposed upon the Local by the order of November 2, 1960 was dissolved by the court’s order of December 13, 1960. Serio was returned to the payroll on January 2, 1961. He therefore is owed a few days pay if he was not subject to the statutory interdiction. This issue alone keeps the case from mootness. We do not have to determine whether Serio was or was not under the interdiction of the statute at the time of his election as business agent nor do we have to determine whether or not he was or is a member of the Local or of the International. Indeed we cannot do so on the present record. See note 1, supra. We do not have to determine his union membership because the provisions of Section 504(a) are operative as to any person, union member or not, who holds a union office, the words of the statute being that “No person who * * has been convicted of * * * assault which inflicts grievous bodily injury * * * shall serve * * as [a] * * * business agent * * * for five years * * * after the end of” his imprisonment. But we do have to determine, as did the court below, whether the five-year interdiction period did expire on December 31, 1960; for if it expired at an earlier date, as Serio contends, he lost some pay amounting, with interest, to about $500. On the other hand Serio was deprived of nothing to which he was entitled if the Secretary’s theory is correct that his enlargement by parole was not a termination of imprisonment. The Secretary insists that this issue must be decided by federal law alone, whether the parolee is paroled by state law or by federal law. If the parolee had committed a federal crime, had been incarcerated in a federal jail and was paroled by the Federal Parole Board, the term “after the end of such imprisonment”, employed in Section 504(a), must be tested by federal law alone since no state law is involved. It is clear that federal law includes parole as part of imprisonment. This is conceded by Serio. If, on the other hand, an individual was convicted of a serious state offense, an assault which inflicted grievous bodily injury, as here, was imprisoned in a state institution and was paroled by virtue of state law, must the phrase “after the end of such imprisonment” be tested solely, as Serio insists, by the law of the state in which the convicted person was sentenced and later paroled? We are of the opinion that the two alternative positions stated by the Secretary and by Serio are too sharp in their outlines and that Congress intended that the laws of the states and of the United States should play conjoint and not disparate roles. If the state law of parole is not so unlike the federal law as to render the reach of Section 504(a) so variable or so limited that the cleansing period intended by Congress would be impaired, state law might well be applied to construe the phrase referred to. But we do not have to decide this issue here for testing the phrase “after the end of such imprisonment” by the law of New Jersey there is no doubt that parole, under N.J.S.A. § 30:4-123.15, does not remove the parolee from the legal custody and control of the State and that the prisoner while at large is always under surveillance by officers of the State. See the opinion of Attorney General Edmund Wilson, quoted in In re Court of Pardons of New Jersey, 97 N.J.Eq. 555, 571-72, 129 A. 624, 631 (1925). In Application of Clover, 34 N.J.Super. 181, 188, 111 A.2d 910, 914 (1955), the court stated: “Parole is a procedure by which a prisoner is allowed to serve the final portion of his sentence outside the gates of the institution on certain terms and conditions * * See also Ex parte Kneipher, 12 N.J.Super. 407, 79 A.2d 731 (1951). The very statute under which Serio was paroled states that a parolee “shall at all times remain in the legal custody of the warden * * * of the institution from which he is paroled, and under the immediate supervision of the Division of Parole * * * until the expiration of the maximum sentence prescribed by law for the crime for which he was committed.” We hold therefore that whether federal law or New Jersey law be employed the five-year interdiction period of Section 504(a) came to an end no sooner than December 31, 1960 and therefore there is no sum owing from the defendant Union to Serio. A further point requires brief discussion. It has not been raised by counsel nor was it considered by the court below. An examination of the record and the briefs will show that the adversary aspect of the litigation has been conducted entirely by the Secretary and that the original defendants filed an answer admitting in substance all of the allegations of the complaint. However, we do not see how they could have denied the verity of these allegations in good faith. The questions which remain are primarily those of law and they have been asserted most vigorously by the Secretary. Under the circumstances we are not inclined to treat the suit as a “collusive” one or as a nonadversary proceeding. Compare United States v. Lovett, 328 U.S. 303, 306, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946), with United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943). See “Judicial Determinations in Nonadversary Proceedings”, 72 Harv.L.Rev. 723 (1959). We think that under Rule 24(b), Fed.R.Civ.Proc. 28 U.S.C., read in the light of Sections 601 (a) and 607 of the Act, 29 U.S.C.A. §§ 521(a), 527, the Secretary, as the fundamental governmental officer charged with the effective execution of the LandrumGriffin Act, was entitled to intervene and defend the action. To hold that a proceeding such as that at bar is a non-adversary one might limit lamentably future effective enforcement of the Act. The judgment of the court below will be affirmed. . On close examination the case at bar does not seem to be one apt for disposal on motion for summary judgment because of the very abbreviated record. No motions for summary judgment appear in the record before us. That record does not disclose the date of Serio’s election. We therefore cannot tell whether or not he was eligible for election to the office of business agent at the time he was elected. Neither the constitution nor by-laws of the Local nor those of the International are in evidence. The record does not disclose whether the election at which Serio was elected business agent of the Local was one which falls within the purview of Section 401(e) of the Act, 29 U.S.C.A. § 481(e). The record does not show whether Serio was a member of the Local or of the International, though he is referred to in letters written by the International’s house counsel as “Brother Serio”. In this connection the court below stated: “While plaintiff’s right to become a candidate for and to be elected to the office which he holds presumably arise from the constitution and by-laws of the labor organization of which he is a member, his right to continue to occupy and his immunity from removal from that office depends [sic] upon the construction of section 504(a) of the Act.” 189 F.Supp. at p. 362. Nonetheless we think that the case can be disposed of on the present record. . Section 504 provides: “(a) No person who is or has been a member of the Communist Party or who has been convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subehapter III or IV of this chapter, or conspiracy to commit any such crimes, shall serve— “(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or “(2) as a labor relations consultant to a person engaged in an industry or activity affecting commerce, or as an officer, director, agent, or employee (other than as an employee performing exclusively clerical or custodial duties) of any group or association of employers dealing with any labor organization, during or for five years after the termination of his membership in the Communist Party, or for five years after such conviction or after the end of such imprisonment, unless prior to the end of such five-year period, in the case of a person so convicted or imprisoned, (A) his citizenship rights, having been revoked as a result of such conviction, have been fully restored, or (B) the Board of Parole of the United States Department of Justice determines that such person’s service in any capacity referred to in clause (1) or (2) would not be contrary to the purposes of this chapter. Prior to making any such determination the Board shall hold an administrative hearing and shall give notice of such proceeding by certified mail to the State, County, and Federal prosecuting officials in the jurisdiction or jurisdictions in which such person was convicted. The Board’s determination in any such proceeding shall be final. No labor organization or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this subsection. “(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not more than one year, or both. “(c) For the purposes of this section, any person shall be deemed to have been ‘convicted’ and under the disability of ‘conviction’ from the date of the judgment of the trial court or the date of the final sustaining of such judgment on appeal, whichever is the later event, regardless of whether such conviction occurred before or after September 14, 1959.” . Section 1337 provides: “The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.” The Landrum-Griffin Act, 29 U.S.C.A. §§ 401-531, is an “Act of Congress regulating commerce” within the meaning of Section 1337. See Section 2(c) of the Act, 29 U.S.C.A. § 401(c); Jackson v. The Martin Co., 180 F.Supp. 475, 482 (D.C.Md.1960). The tests required by Section 1337 are the same as those demanded by Section 1331 except that no jurisdictional amount need be alleged. Peyton v. Railway Express Agency, 316 U.S. 350, 62 S.Ct. 1171, 86 L.Ed. 1525 (1942). See Moore’s Federal Practice, 2d ed., Vol. I, p. 627. . See also E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852 (7 Cir.), cert. denied, 300 U.S. 680, 57 S.Ct. 673, 81 L.Ed. 884 (1937); Mishkin, The Federal “Question” in the District Courts, 53 Colum.L.Rev. 157, 179 (1953). . See Shoshone Mining Co. v. Rutter, 177 U.S 505, 20 S.Ct. 726, 44 L.Ed. 864 (1900), and Mishkin, The Federal “Question” in the District Courts, 53 Colum.L.Rev. 157 (1953). Professor Mishkin stated, id. at p. 162, that the national interest in some suits is “negligible” and that “To bring all these suits into the federal courts would place upon them— and many of the litigants — an unnecessary burden.” . Serio’s supplemental memorandum, filed at tlie request of the court, states: “It has been stated in open court that, by-reason of the temporary restraint issued by the Court below, plaintiff was able to retain his office until December 13, 1960, at which time the restraint was dissolved, and bis name was removed from tbe payroll. On January 2, 1961, the five-year disqualification (under the defendant’s interpretation) having terminated, plaintiff returned to the payroll. Thus, in effect, he lost only two weeks’ salary.” Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
sc_petitioner	039	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. Michael B. KINGSLEY, Petitioner v. Stan HENDRICKSON, et al. No. 14-6368. Supreme Court of the United States Argued April 27, 2015. Decided June 22, 2015. Wendy M. Ward, Madison, WI, for Petitioner. John F. Bash, for the United States as amicus curiae, by special leave of the Court, supporting affirmance. Paul D. Clement, Washington, DC, for Respondents. Wendy M. Ward, Jeffrey S. Ward, Edward J. Pardon, Merchant & Gould P.C., Madison, WI, Sarah O'Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL, Jeffrey T. Green, Counsel of Record, Adam N. Hallowell, Sidley Austin LLP, Washington, DC, Steven J. Horowitz, Sidley Austin LLP, Chicago, IL, for Petitioner. Paul D. Clement, D. Zachary Hudson, William R. Levi, Bancroft PLLC, Washington, DC, Charles H. Bohl, Counsel of Record, Andrew A. Jones, Timothy H. Posnanski, Mpoli N. Simwanza-Johnson, James C. Remington, Whyte Hirschboeck Dudek SC, Milwaukee, WI, for Respondents. Opinion Justice BREYERdelivered the opinion of the Court. In this case, an individual detained in a jail prior to trial brought a claim under Rev. Stat. § 1979, 42 U.S.C. § 1983, against several jail officers, alleging that they used excessive force against him, in violation of the Fourteenth Amendment's Due Process Clause. The officers concede that they intended to use the force that they used. But the parties disagree about whether the force used was excessive. The question before us is whether, to prove an excessive force claim, a pretrial detainee must show that the officers were subjectivelyaware that their use of force was unreasonable, or only that the officers' use of that force was objectivelyunreasonable. We conclude that the latter standard is the correct one. I A Some but not all of the facts are undisputed: Michael Kingsley, the petitioner, was arrested on a drug charge and detained in a Wisconsin county jail prior to trial. On the evening of May 20, 2010, an officer performing a cell check noticed a piece of paper covering the light fixture above Kingsley's bed. The officer told Kingsley to remove it; Kingsley refused; subsequently other officers told Kingsley to remove the paper; and each time Kingsley refused. The next morning, the jail administrator, Lieutenant Robert Conroy, ordered Kingsley to remove the paper. Kingsley once again refused. Conroy then told Kingsley that officers would remove the paper and that he would be moved to a receiving cell in the interim. Shortly thereafter, four officers, including respondents Sergeant Stan Hendrickson and Deputy Sheriff Fritz Degner, approached the cell and ordered Kingsley to stand, back up to the door, and keep his hands behind him. When Kingsley refused to comply, the officers handcuffed him, forcibly removed him from the cell, carried him to a receiving cell, and placed him face down on a bunk with his hands handcuffed behind his back. The parties' views about what happened next differ. The officers testified that Kingsley resisted their efforts to remove his handcuffs. Kingsley testified that he did not resist. All agree that Sergeant Hendrickson placed his knee in Kingsley's back and Kingsley told him in impolite language to get off. Kingsley testified that Hendrickson and Degner then slammed his head into the concrete bunk-an allegation the officers deny. The parties agree, however, about what happened next: Hendrickson directed Degner to stun Kingsley with a Taser; Degner applied a Taser to Kingsley's back for approximately five seconds; the officers then left the handcuffed Kingsley alone in the receiving cell; and officers returned to the cell 15 minutes later and removed Kingsley's handcuffs. B Based on these and related events, Kingsley filed a § 1983complaint in Federal District Court claiming (among other things) that Hendrickson and Degner used excessive force against him, in violation of the Fourteenth Amendment's Due Process Clause. The officers moved for summary judgment, which the District Court denied, stating that "a reasonable jury could conclude that [the officers] acted with malice and intended to harm [Kingsley] when they used force against him." Kingsley v. Josvai,No. 10-cv-832-bbc (WD Wis., Nov. 16, 2011), App to Pet. for Cert. 66a-67a. Kingsley's excessive force claim accordingly proceeded to trial. At the conclusion of the trial, the District Court instructed the jury as follows: "Excessive force means force applied recklesslythat is unreasonable in light of the facts and circumstances of the time. Thus, to succeed on his claim of excessive use of force, plaintiff must prove each of the following factors by a preponderance of the evidence: "(1) Defendants used force on plaintiff; "(2) Defendants' use of force was unreasonable in light of the facts and circumstances at the time; "(3) Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety by failing to take reasonable measures to minimize the risk of harm to plaintiff; and "(4) Defendants' conduct caused some harm to plaintiff. "In deciding whether one or more defendants used 'unreasonable' force against plaintiff, you must consider whether it was unreasonable from the perspective of a reasonable officer facing the same circumstances that defendants faced. You must make this decision based on what defendants knew at the time of the incident, not based on what you know now. "Also, in deciding whether one or more defendants used unreasonable force and acted with reckless disregard of plaintiff's rights, you may consider factors such as: "• The need to use force; "• The relationship between the need to use force and the amount of force used; "• The extent of plaintiff's injury; "• Whether defendants reasonably believed there was a threat to the safety of staff or prisoners; and "• Any efforts made by defendants to limit the amount of force used." App. 277-278 (emphasis added). The jury found in the officers' favor. On appeal, Kingsley argued that the correct standard for judging a pretrial detainee's excessive force claim is objective unreasonableness. And, the jury instruction, he said, did not hew to that standard. A panel of the Court of Appeals disagreed, with one judge dissenting. The majority held that the law required a "subjective inquiry" into the officer's state of mind. There must be " 'an actual intent to violate [the plaintiff's] rights or reckless disregard for his rights.' " 744 F.3d 443, 451 (C.A.7 2014)(quoting Wilson v. Williams,83 F.3d 870, 875 (C.A.7 1996)). The dissent would have used instructions promulgated by the Committee on Pattern Civil Jury Instructions of the Seventh Circuit, which require a pretrial detainee claiming excessive force to show only that the use of force was objectively unreasonable. 744 F.3d, at 455(opinion of Hamilton, J.); see Pattern Civ. Jury Instr. § 7.08 (2009). The dissent further stated that the District Court's use of the word "reckless" in the jury instruction added "an unnecessary and confusing element." 744 F.3d, at 455. Kingsley filed a petition for certiorari asking us to determine whether the requirements of a § 1983excessive force claim brought by a pretrial detainee must satisfy the subjective standard or only the objective standard. In light of disagreement among the Circuits, we agreed to do so. Compare, e.g., Murray v. Johnson No. 260,367 Fed.Appx. 196, 198 (C.A.2 2010); Bozeman v. Orum,422 F.3d 1265, 1271 (C.A.11 2005)(per curiam), with Aldini v. Johnson,609 F.3d 858, 865-866 (C.A.6 2010); Young v. Wolfe,478 Fed.Appx. 354, 356 (C.A.9 2012). II A We consider a legally requisite state of mind. In a case like this one, there are, in a sense, two separate state-of-mind questions. The first concerns the defendant's state of mind with respect to his physical acts-i.e.,his state of mind with respect to the bringing about of certain physical consequences in the world. The second question concerns the defendant's state of mind with respect to whether his use of force was "excessive." Here, as to the first question, there is no dispute. As to the second, whether to interpret the defendant's physical acts in the world as involving force that was "excessive," there is a dispute. We conclude with respect to that question that the relevant standard is objective not subjective. Thus, the defendant's state of mind is not a matter that a plaintiff is required to prove. Consider the series of physical events that take place in the world-a series of events that might consist, for example, of the swing of a fist that hits a face, a push that leads to a fall, or the shot of a Taser that leads to the stunning of its recipient. No one here denies, and we must assume, that, as to the series of events that have taken place in the world, the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind. That is because, as we have stated, "liability for negligentlyinflicted harm is categorically beneath the threshold of constitutional due process." County of Sacramento v. Lewis,523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)(emphasis added). See also Daniels v. Williams,474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property"). Thus, if an officer's Taser goes off by accident or if an officer unintentionally trips and falls on a detainee, causing him harm, the pretrial detainee cannot prevail on an excessive force claim. But if the use of force is deliberate-i.e., purposeful or knowing-the pretrial detainee's claim may proceed. In the context of a police pursuit of a suspect the Court noted, though without so holding, that recklessness in some cases might suffice as a standard for imposing liability. See Lewis, supra,at 849, 118 S.Ct. 1708. Whether that standard might suffice for liability in the case of an alleged mistreatment of a pretrial detainee need not be decided here; for the officers do not dispute that they acted purposefully or knowingly with respect to the force they used against Kingsley. We now consider the question before us here-the defendant's state of mind with respect to the proper interpretation of the force (a series of events in the world) that the defendant deliberately (not accidentally or negligently) used. In deciding whether the force deliberately used is, constitutionally speaking, "excessive," should courts use an objective standard only, or instead a subjective standard that takes into account a defendant's state of mind? It is with respect to this question that we hold that courts must use an objective standard. In short, we agree with the dissenting appeals court judge, the Seventh Circuit's jury instruction committee, and Kingsley, that a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable. A court (judge or jury) cannot apply this standard mechanically. See Lewis, supra,at 850, 118 S.Ct. 1708. Rather, objective reasonableness turns on the "facts and circumstances of each particular case." Graham v. Connor,490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight. See ibid. A court must also account for the "legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained," appropriately deferring to "policies and practices that in th[e] judgment" of jail officials "are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish,441 U.S. 520, 540, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Considerations such as the following may bear on the reasonableness or unreasonableness of the force used: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. See, e.g.,Graham, supra,at 396, 109 S.Ct. 1865. We do not consider this list to be exclusive. We mention these factors only to illustrate the types of objective circumstances potentially relevant to a determination of excessive force. B Several considerations have led us to conclude that the appropriate standard for a pretrial detainee's excessive force claim is solely an objective one. For one thing, it is consistent with our precedent. We have said that "the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment." Graham, supra,at 395, n. 10, 109 S.Ct. 1865. And in Bell,we explained that such "punishment" can consist of actions taken with an "expressed intent to punish." 441 U.S., at 538, 99 S.Ct. 1861. But the BellCourt went on to explain that, in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not "rationally related to a legitimate nonpunitive governmental purpose" or that the actions "appear excessive in relation to that purpose."Id.,at 561, 99 S.Ct. 1861. The BellCourt applied this latter objective standard to evaluate a variety of prison conditions, including a prison's practice of double-bunking. In doing so, it did not consider the prison officials' subjective beliefs about the policy. Id.,at 541-543, 99 S.Ct. 1861. Rather, the Court examined objective evidence, such as the size of the rooms and available amenities, before concluding that the conditions were reasonably related to the legitimate purpose of holding detainees for trial and did not appear excessive in relation to that purpose. Ibid. Bell's focus on "punishment" does not mean that proof of intent (or motive) to punish is required for a pretrial detainee to prevail on a claim that his due process rights were violated. Rather, as Bellitself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose. Cf. Block v. Rutherford,468 U.S. 576, 585-586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)(where there was no suggestion that the purpose of jail policy of denying contact visitation was to punish inmates, the Court need only evaluate whether the policy was "reasonably related to legitimate governmental objectives" and whether it appears excessive in relation to that objective); Schall v. Martin,467 U.S. 253, 269-271, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984)(similar); see also United States v. Salerno,481 U.S. 739, 747, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)("[T]he punitive/regulatory distinction turns on'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]' " (quoting Schall, supra,at 269, 104 S.Ct. 2403; emphasis added and some internal quotation marks omitted)). The Court did not suggest in any of these cases, either by its words or its analysis, that its application of Bell's objective standard should involve subjective considerations. Our standard is also consistent with our use of an objective "excessive force" standard where officers apply force to a person who, like Kingsley, has been accused but not convicted of a crime, but who, unlike Kingsley, is free on bail. See Graham, supra. For another thing, experience suggests that an objective standard is workable. It is consistent with the pattern jury instructions used in several Circuits. We are also told that many facilities, including the facility at issue here, train officers to interact with all detainees as if the officers' conduct is subject to an objective reasonableness standard. See Brief for Petitioner 26; App. 247-248; Brief for Former Corrections Administrators and Experts as Amici Curiae8-18. Finally, the use of an objective standard adequately protects an officer who acts in good faith. We recognize that "[r]unning a prison is an inordinately difficult undertaking," Turner v. Safley,482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and that "safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face," Florence v. Board of Chosen Freeholders of County of Burlington,566 U.S. ----, ----, 132 S.Ct. 1510, 1515, 182 L.Ed.2d 566 (2012). Officers facing disturbances "are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving." Graham,490 U.S., at 397, 109 S.Ct. 1865. For these reasons, we have stressed that a court must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer. We have also explained that a court must take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate. See Part II-A, supra.And we have limited liability for excessive force to situations in which the use of force was the result of an intentional and knowing act (though we leave open the Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
sc_issuearea	E	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. CAREY, GOVERNOR OF NEW YORK, et al. v. POPULATION SERVICES INTERNATIONAL et al. No. 75-443. Argued January 10, 1977 Decided June 9, 1977 Arlene B. Silverman, Assistant Attorney General of New York, argued the cause for appellants. With her on the briefs were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. Michael N. Pollet argued the cause for appellees. With him on the brief was Steven Delibert. Briefs of amici curiae urging affirmance were filed by Melvin L. Wvlf, Judith M. Mears, and Rena Uviller for the American Civil Liberties Union; and by Harriet F. Pilpel and Eve W. Paul for the Planned Parenthood Federation of America et al. Mr. Justice Brennan delivered the opinion of the Court (Parts I, II, III, and V), together with an opinion (Part IV), in which Mr. Justice Stewart, Mr. Justice Marshall, and Mr. Justice Blackmun joined. Under New York Educ. Law § 6811 (8) (McKinney 1972) it is a crime (1) for any person to sell or distribute any contraceptive of any kind to a minor under the age of 16 years ; (2) for anyone other than a licensed pharmacist to distribute contraceptives to persons 16 or over; and (3) for anyone, including licensed pharmacists, to advertise or display contraceptives. A three-judge District Court for the Southern District of New York declared § 6811 (8) unconstitutional in its entirety under the First and Fourteenth Amendments of the Federal Constitution insofar as it applies to nonprescription contraceptives, and enjoined its enforcement as so applied. 398 F. Supp. 321 (1975). We noted probable jurisdiction, 426 U. S. 918 (1976). We affirm. I We must address a preliminary question of the standing of the various appellees to maintain the action. We conclude that appellee Population Planning Associates, Inc. (PPA) has the requisite standing and therefore have no occasion to decide the standing of the other appellees. PPA is a corporation primarily engaged in the mail-order retail sale of nonmedical contraceptive devices from its offices in North Carolina. PPA regularly advertises its products in periodicals published or circulated in New York, accepts orders from New York residents, and fills orders by mailing contraceptives to New York purchasers. Neither the advertisements nor the order forms accompanying them limit availability of PPA’s products to persons of any particular age. Various New York officials have advised PPA that its activities violate New York law. A letter of December 1, 1971, notified PPA that a PPA advertisement in a New York college newspaper violated § 6811 (8), citing each of the three challenged provisions, and requested “future compliance” with the law. A second letter, dated February 23, 1973, notifying PPA that PPA’s magazine advertisements of contraceptives violated the statute, referred particularly to the provisions prohibiting sales to minors and sales by nonpharmacists, and threatened: “In the event you fail to comply, the matter will be referred to our Attorney General for legal action.” Finally, PPA was served with a copy of a report of inspectors of the State Board of Pharmacy, dated September 4, 1974, which recorded that PPA advertised male contraceptives, and had been advised to cease selling contraceptives in violation of the state law. That PPA has standing to challenge § 6811 (8), not only in its own right but also on behalf of its potential customers, is settled by Craig v. Boren, 429 U. S. 190, 192-197 (1976). Craig held that a vendor of 3.2% beer had standing to challenge in its own right and as advocate for the rights of third persons, the gender-based discrimination in a state statute that prohibited sale of the beer to men, but not to women, between the agfes of 18 and 21. In this case, as did the statute in Craig, § 6811 (8) inflicts on the vendor PPA “injury in fact” that satisfies Art. Ill’s case-or-controversy requirement, since “[t]he legal duties created by the statutory sections under challenge are addressed directly to vendors such as [PPA. It] is obliged either to heed the statutory [prohibition], thereby incurring a direct economic injury through the constriction of [its] market, or to disobey the statutory command and suffer” legal sanctions. 429 U. S., at 194; Therefore, PPA is among the “vendors and those in like positions [who] have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function.” Id., at 195. See also Eisenstadt v. Baird, 405 U. S. 438, 443-446 (1972); Sullivan v. Little Hunting Park, 396 U. S. 229, 237 (1969); Barrows v. Jackson, 346 U. S. 249, 257-260 (1953). As such, PPA “is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should [its] constitutional challenge fail.” Craig v. Boren, supra, at 195, quoting Griswold v. Connecticut, 381 U. S. 479, 481 (1965). II Although “[t]he Constitution does not explicitly mention any right of privacy,” the Court has recognized that one aspect of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment is “a right of personal privacy, or a guarantee of certain areas or zones of privacy.” Roe v. Wade, 410 U. S. 113, 152 (1973). This right of personal privacy includes “the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U. S. 589, 599-600 (1977). While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions “relating to fmarriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma, ex rel. Williamson, 316 U. S. 535, 541-542 (1942); contraception; Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Meyer v. Nebraska, [262 U. S. 390, 399 (1923)].” Roe v. Wade, supra, at 152-153. See also Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974). The decision whether or not to beget or bear a child is at the very heart of this cluster of constitutionally protected choices. That decision holds a particularly important place in the history of the right of privacy, a right first explicitly recognized in an opinion holding unconstitutional a statute prohibiting the use of contraceptives, Griswold v. Connecticut, supra, and most prominently vindicated in recent years in the contexts of contraception, Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; and abortion, Roe v. Wade, supra; Doe v. Bolton, 410 U. S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976). This is understandable, for in a field that by definition concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive. “If the right of privacy means anything, it is the right of the individual, married or single, to be free of unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Eisenstadt v. Baird, supra, at 453. (Emphasis omitted.) That the constitutionally protected right of privacy extends to an individual’s liberty to make choices regarding contraception does not, however, automatically invalidate every state regulation in this area. The business of manufacturing and selling contraceptives may be regulated in ways that do not infringe protected individual choices. And even a burdensome regulation may be validated by a sufficiently compelling state interest. In Roe v. Wade, for example, after determining that the “right of privacy . . . encompass [es] a woman’s decision whether or not to terminate her pregnancy,” 410 U. S., at 153, we cautioned that the right is not absolute, and that certain state interests (in that case,- “interests in safeguarding health, in maintaining medical standards, and in protecting potential life”) may at some point “become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.” Id., at 154. “Compelling” is of course the key word; where a decision as fundamental as that whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by compelling state interests, and must be narrowly drawn to express only those interests. Id., at 155-156, and cases there cited. With these principles in mind, we turn to the question whether the District Court was correct in holding invalid the provisions of § 6811 (8) as applied to the distribution of nonprescription contraceptives. Ill We consider first the wider restriction on access to contraceptives created by § 6811 (8)’s prohibition of the distribution of nonmedical contraceptives to adults except through licensed pharmacists. Appellants argue that this Court has not accorded a “right of access to contraceptives” the status of a fundamental aspect of personal liberty. They emphasize that Griswold v. Connecticut struck down a state prohibition of the use of contraceptives, and so had no occasion to discuss laws “regulating their manufacture or sale.” 381 U. S., at 485. Eisenstadt v. Baird, was decided under the Equal Protection Clause, holding that “whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.” 405 U. S., at 453. Thus appellants argue that neither case should be treated as reflecting upon, the State’s power to limit or prohibit distribution of contraceptives to any persons, married or unmarried. But see id., at 463-464 (White, J., concurring in result). The fatal fallacy in this argument is that it overlooks the underlying premise of those decisions that the Constitution protects “the right of the individual ... to be free from unwarranted governmental intrusion into . . . the decision whether to bear or beget a child.” Id., at 453. Griswold did state that by “forbidding the use of contraceptives rather than regulating their manufacture or sale,” the Connecticut statute there had “a maximum destructive impact” on privacy rights. 381 U. S., at 485. This intrusion into “the sacred precincts of marital bedrooms” made that statute particularly “repulsive.” Id., at 485-486. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the “decision whether to bear or beget a child.” 405 U. S., at 453 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects “a woman’s decision whether or not to terminate her pregnancy.” 410 U. S., at 153 (emphasis added). See also Whalen v. Roe, supra, at 599-600, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple’s use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State. Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions. A total prohibition against sale of contraceptives, for example, would intrude upon individual decisions in matters of procreation and contraception as harshly as a direct ban on their use. Indeed, in practice, a prohibition against all sales, since more easily and less offensively enforced, might have an even more devastating effect upon the freedom to choose contraception. Cf. Poe v. Ullman, 367 U. S. 497 (1961). An instructive analogy is found in decisions after Roe v. Wade, supra, that held unconstitutional statutes that did not prohibit abortions outright but limited in a variety of ways a woman’s access to them. Doe v. Bolton, 410 U. S. 179 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976). See also Bigelow v. Virginia, 421 U. S. 809 (1975). The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation “may be justified only by a ‘compelling state interest’. . . and . . . must be narrowly drawn to express only the legitimate state interests at stake.” Roe v. Wade, supra, at 155. See also Eisenstadt v. Baird, 405 U. S., at 463 (White, J., concurring in result). This is so not because- there is an independent fundamental “right of access to contraceptives,” but because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing that is the underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade. Limiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives if they choose to do so. Eisenstadt v. Baird, supra, at 461-464 (White, J., concurring in result). The burden is, of course, not as great as that under a total ban on distribution. Nevertheless, the restriction of distribution channels to a small fraction of the total number of possible retail outlets renders contraceptive devices considerably less accessible to the public, reduces the opportunity for privacy of selection and purchase, and lessens the possibility of price competition. Cf. Griswold v. Connecticut, 381 U. S., at 503 (White, J., concurring in judgment). Of particular relevance here is Doe v. Bolton, supra, in which the Court struck down, as unconstitutionally burdening the right of a woman to choose abortion, a statute requiring that abortions be performed only in accredited hospitals, in the absence of proof that the requirement was substantially related to the State’s interest in protecting the patient’s health. 410 U. S., at 193-195. The same infirmity infuses the limitation in § 6811 (8). “Just as in Griswold, where the right of married persons to use contraceptives was 'diluted or adversely affected’ by permitting a conviction for giving advice as to its exercise, . . . so here, to sanction a medical restriction upon distribution of a contraceptive not proved hazardous to health would impair the exercise of the constitutional right.” Eisenstadt v. Baird, 405 U. S., at 464 (White, J., concurring in result). There remains the inquiry whether the provision serves a compelling state interest. Clearly “interests ... in maintaining medical standards, and in protecting potential life,” Roe v. Wade, 410 U. S., at 154, cannot be invoked to justify this statute. Insofar as § 6811 (8) applies to nonhazardous contraceptives, it bears no relation to the State’s interest in protecting health. Eisenstadt v. Baird, supra, at 450-452; 463-464 (White, J., concurring in result). Nor is the interest in protecting potential life implicated in state regulation of contraceptives. Roe v. Wade, supra, at 163-164. Appellants therefore suggest that § 6811 (8) furthers other state interests. But none of them is comparable to those the Court has heretofore recognized as compelling. Appellants argue that the limitation of retail sales of nonmedical contraceptives to pharmacists (1) expresses “a proper concern that young people not sell contraceptives”; (2) “allows purchasers to inquire as to the relative qualities of the varying products and prevents anyone from tampering with them”; and (3) facilitates enforcement of the other provisions of the statute. Brief for Appellants 14. The first hardly can justify the statute’s incursion into constitutionally protected rights, and in any event the statute is obviously not substantially related to any goal of preventing young people from selling contraceptives. Nor is the statute designed to serve as a quality control device. Nothing in the record suggests that pharmacists are particularly qualified to give advice on the merits of different nonmedical contraceptives, or that such advice is more necessary to the purchaser of contraceptive products than to consumers of other nonprescription items. Why pharmacists are better able or more inclined than other retailers to prevent tampering with prepackaged products, or, if they are, why contraceptives are singled out for this special protection, is also unexplained. As to ease of enforcement, the prospect of additional administrative inconvenience has not been thought to justify invasion of fundamental constitutional rights. See, e. g., Morrissey v. Brewer, 408 U. S. 471 (1972); Goldberg v. Kelly, 397 U. S. 254 (1970). IV A The District Court also held unconstitutional, as applied to nonprescription contraceptives, the provision of § 6811 (8) prohibiting the distribution of contraceptives to those under 16 years of age. Appellants contend that this provision of the statute is constitutionally permissible as a regulation of the morality of minors, in furtherance of the State’s policy against promiscuous sexual intercourse among the young. The question of the extent of state power to regulate conduct of minors not constitutionally regulable when committed by adults is a vexing one, perhaps not susceptible of precise answer. We have been reluctant to attempt to define “the totality of the relationship of the juvenile and the state.” In re Gault, 387 U. S. 1, 13 (1967). Certain principles, however, have been recognized. “Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 74. “[Wjhatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” In re Gault, supra, at 13. On the other hand, we have held in a variety of contexts that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince v. Massachusetts, 321 U. S. 158, 170 (1944). See Ginsberg v. New York, 390 U. S. 629 (1968). See also McKeiver v. Pennsylvania, 403 U. S. 528 (1971). Of particular significance to the decision of this case, the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults. Planned Parenthood of Central Missouri v. Danforth, supra, held that a State “may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy.” 428 U. S., at 74. As in the case of the spousal-consent requirement struck down in the same case, id., at 67-72, “the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto,” id., at 74, “ ‘which the state itself is absolutely and totally prohibited from exercising.’ ” Id., at 69. State restrictions inhibiting privacy rights of minors are valid only if they serve “any significant state interest... that is not present in the case of an adult.” Id., at 75. Planned Parenthood found that no such interest justified a state requirement of parental consent. Since the State may not impose a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy, the constitutionality of a blanket prohibition of the distribution of contraceptives to minors is a fortiori foreclosed. The State’s interests in protection of the mental and physical health of the pregnant minor, and in protection of potential life are clearly more implicated by the abortion decision than by the decision to use a nonhazardous contraceptive. Appellants argue, however, that significant state interests are served by restricting minors’ access to contraceptives, because free availability to minors of contraceptives would lead to increased sexual activity among the young, in violation of the policy of New York to discourage such behavior. The argument is that minors’ sexual activity may be deterred by increasing the hazards attendant on it. The same argument, however, would support a ban on abortions for minors, or indeed support a prohibition on abortions, or access to contraceptives, for the unmarried, whose sexual activity is also against the public policy of many States. Yet, in each of these areas, the Court has rejected the argument, noting in Roe v. Wade, that “no court or commentator has taken the argument seriously.” 410 U. S., at 148. The reason for this unanimous rejection was stated in Eisenstadt v. Baird: “It would be plainly unreasonable to assume that [the State] has prescribed pregnancy and the birth of an unwanted child [or the physical and psychological dangers of an abortion] as punishment for fornication.” 405 U. S., at 448. We remain reluctant to attribute any such “scheme of values” to the State. Moreover, there is substantial reason for doubt whether limiting access to contraceptives will in fact substantially discourage early sexual behavior. Appellants themselves conceded in the District Court that “there is no evidence that teenage extramarital sexual activity increases in proportion to the availability of contraceptives,” 398 F. Supp., at 332, and n. 10, and accordingly offered none, in the District Court or here. Appellees, on the other hand, cite a considerable body of evidence and opinion indicating that there is no such deterrent effect. Although we take judicial notice, as did the District Court, id., at 331-333, that with or without access to contraceptives, the incidence of sexual activity among minors is high, and the consequences of such activity are frequently devastating, the studies cited by appellees play no part in our decision. It is enough that we again confirm the principle that when a State, as here, burdens the exercise of a fundamental right, its attempt to justify that burden as a rational means for the accomplishment of some significant state policy requires more than a bare assertion, based on a conceded complete absence of supporting evidence, that the burden is connected to such a policy. B Appellants argue that New York does not totally prohibit distribution of contraceptives to minors under 16, and that accordingly § 6811 (8) cannot be held unconstitutional. Although § 6811 (8) on its face is a flat unqualified prohibition, Educ. Law § 6807 (b) (McKinney, Supp. 1976-1977), see nn. 1, 7, and 13, supra, provides that nothing in Education Law §§ 6800-6826 shall be construed to prevent “[a]ny physician . . . from supplying his patients with such drugs as [he] . . . deems proper in connection with his practice.” This narrow exception, however, does not save the statute. As we have held above as to limitations upon distribution to adults, less than total restrictions on access to contraceptives that significantly burden the right to decide whether to bear children must also pass constitutional scrutiny. Appellants assert no medical necessity for imposing a medical limitation on the distribution of nonprescription contraceptives to minors. Rather, they argue that such a restriction serves to emphasize to young people the seriousness with which the State views the decision to engage in sexual intercourse at an early age. But this is only another form of the argument that juvenile sexual conduct will be deterred by making contraceptives more difficult to obtain. Moreover, that argument is particularly poorly suited to the restriction appellants are attempting to justify, which on appellants’ construction delegates the State’s authority to disapprove of minors’ sexual behavior to physicians, who may exercise it arbitrarily, either to deny contraceptives to young people, or to undermine the State’s policy of discouraging illicit early sexual behavior. This the State may not do. Cf. Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 69, 74. V The District Court’s holding that the prohibition of any “advertisement or display” of contraceptives is unconstitutional was clearly correct. Only last Term Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), held that a State may not “completely suppress the dissemination of concededly truthful information about entirely lawful activity,” even when that information could be categorized as “commercial speech.” Id., at 773. Just as in that case, the statute challenged here seeks to suppress completely any information about the availability and price of contraceptives. Nor does the case present any question left open in Virginia Pharmacy Bd.; here, as there, there can be no contention that the regulation is “a mere time, place, and manner restriction,” id., at 771, or that it prohibits only misleading or deceptive advertisements,.ibid., or “that the transactions proposed in the forbidden advertisements are themselves illegal in any way. Cf. Pittsburgh Press Co. v. Human Relations Comm’n, [413 U. S. 376 (1973)].” Id., at 772-773. Moreover, in addition to the “substantial individual and societal interests” in the free flow of commercial information enumerated in Virginia Pharmacy Bd., supra, at 763-766, the information suppressed by this statute “related to activity with which, at least in some respects, the State could not interfere.” 425 U. S., at 760. Cf. Bigelow v. Virginia, 421 U. S. 809 (1975). Appellants contend that advertisements of contraceptive products would be offensive and embarrassing to those exposed to them, and that permitting them would legitimize ■ sexual activity of young people. But these are classically not justifications validating the suppression of expression protected by the First Amendment.. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppress sion. See, e. g., Cohen v. California, 403 U. S. 15 (1971). As for the possible “legitimation” of illicit sexual behavior, whatever might be the case if the advertisements directly incited illicit sexual activity among the young, none of the advertisements in this record can even remotely be characterized as “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969). They merely state the availability of products and services that are not only entirely legal, cf. Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376 (1973), but constitutionally protected. Cf. Bigelow v. Virginia, supra These arguments therefore do not justify the total suppression of advertising concerning contraceptives. Affirmed. The Chief Justice dissents. Section 6811 (8) provides: “It shall'be a class A misdemeanor for: “8. Any person to sell or distribute any instrument or article, or any recipe, drag or medicine for the prevention of contraception to a minor under the age of sixteen years; the sale or distribution of such to a person other than a minor under the age of sixteen years is authorized only by a licensed pharmacist but the advertisement or display of said articles, within or without the premises of such pharmacy, is hereby prohibited.” After some dispute in the District Court the parties apparently now agree that Education Law § 6807 (b) (McKinney 1972) constitutes an exception to the distribution prohibitions of §6811 (8). Section 6807 (b) provides: “This article shall not be construed to affect or prevent: “(b) Any physician . . . who is not the owner of a pharmacy, or registered store, or who is not in the employ of such owner, from supplying his patients with such drugs as the physician . . . deems proper in connection with his practice . . . .” The definition of “drugs” in Education Law § 6802 (7) (McKinney 1972) apparently includes any contraceptive drug or device. See nn. 7, 13, and 23, and text, infra, at 697-699. See also 398 F. Supp. 321, 329-330, and n. 8. In addition to PPA, the plaintiffs in the District Court, appellees here, are Population Services International, a nonprofit corporation disseminating birth control information and services; Rev. James B. Hagen, a minister and director of a venereal disease prevention program that distributes contraceptive devices; three physicians specializing in family planning, pediatrics, and obstetrics-gynecology; and an adult New York resident who alleges that the statute inhibits his access to contraceptive devices and information, and his freedom to distribute the same to his minor children. The District Court held that PPA and Hagen had standing, and therefore found it unnecessary to decide the standing of the other plaintiffs. Id., at 327-330. The appellants here, defendants in the District Court, are state officials responsible for the enforcement of the Education Law provisions. Appellants contend that PPA has not suffered “injury in fact” because it has not shown that prosecution under § 6811 (8) is imminent. Steffel v. Thompson, 415 U. S. 452, 459-460 (1974) is dispositive of this argument. PPA alleges that it has violated the challenged statute in the past, and continues to violate it in the regular course of its business; that it has been advised by the authorities responsible for enforcing the statute that it is in violation; and that on at least one occasion, it has been threatened with prosecution. The threat is not, as in Poe v. Ullman, 367 U. S. 497, 508 (1961) (plurality opinion), “chimerical.” In that case, the challenged state law had fallen into virtual desuetude through lack of prosecution over some 80 years, and plaintiffs alleged no explicit threat of prosecution. Here, PPA has been threatened with legal action, and prosecutions have been brought under the predecessor of § 6811 (8) as recently as 1965. See, e. g., People v. Baird, 47 Misc. 2d 478, 262 N. Y. S. 2d 947 (1965). Indeed, the case for the vendor’s standing to assert the rights of potential purchasers of his product is even more compelling here than in Craig, because the rights involved fall within the sensitive area of personal privacy. In such a case potential purchasers “may be chilled from . . . assertion [of their own rights] by a desire to protect the very privacy [they seek to vindicate] from the publicity of a court suit.” Singleton v. Wulff, 428 U. S. 106, 117 (1976). Contrary to the suggestion advanced in Mr. Justice Powell’s opinion, we do not hold that state regulation must meet this standard “whenever it implicates sexual freedom,” post, at 705, or “aifect[s] adult sexual relations,” post, at 703, but only when it “burden [s] an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision.” Supra, this page. As we observe below, “the Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults,” n. 17, infra, and we do not purport to answer that question now. As Mr. Justice Powell notes, post, at 711, the prohibition of mail-order sales of contraceptives, as practiced by PPA, is a particularly “significant invasion of the constitutionally protected privacy in decisions concerning sexual relations.” The narrow exception to § 6811 (8) arguably provided by New York Educ. Law § 6807 (b) (McKinney, Supp. 1976-1977), see n. 1, supra, which permits a physician “who is not the owner of a pharmacy, or registered store” to supply his patients with “such drugs as [he] . . . deems proper in connection with his practice” obviously does not significantly expand the number of regularly available, easily accessible retail outlets for nonprescription contraceptives, and so has little relevance to our analysis of this aspect of § 6811 (8). We have taken judicial notice that “not all contraceptives are potentially dangerous.” Eisenstadt v. Baird, 405 U. S., 438, 451, and n. 9 (1972). See also id., at Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_r_subst	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 "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 NORTHWEST PAPER COMPANY, a Minnesota Corporation, Northwest Paper Company, a Delaware Corporation, and Potlach Forests, Inc., a Delaware Corporation, Petitioners, v. FEDERAL POWER COMMISSION, Respondent. No. 17679. United States Court of Appeals Eighth Circuit. April 7, 1965. Vogel, Circuit Judge, dissented. Josephine H. Klein, Attorney, Federal Power Commission, Washington, D. C., made argument. Richard A. Solomon, Gen. Counsel, Federal Power Commission, Howard E. Wahrenbrock, Solicitor, and Joseph B. Hobbs, Atty., Federal Power Commission, Washington, D. C., on the briefs for respondent. Harry A. Poth, Jr., of Reid & Priest, New York City, made argument. Robert C. Woodbury, New York City, and Pey-ton G. Bowman, III, Washington, D. C., and Harry C. Applequist and John M. Donovan, Duluth, Minn., on brief for petitioner. Before VOGEL, MATTHES and RIDGE, Circuit Judges. MATTHES, Circuit Judge. This is a proceeding under § 313(b) of the Federal Power Act [Act of June 10, 1920, 41 Stat. 1063, as amended, 16 U.S.C.A. § 825l(b)] to review and set aside an order of the Federal Power Commission (Commission) requiring The Northwest Paper Company, a corporation of Minnesota (Paper Company) to apply for a license under the Act for the continued maintenance and operation of its project works in and along the Mississippi River at Brainerd, Minnesota. On April 15, 1886, Congress enacted a Special Act (Act of April 15, 1886, 24 Stat. 12) providing that: “the consent of the Government is hereby given to the Mississippi Water-Power and Boom Company of Brainard, Minnesota, to construct across the Mississippi River, at some point not more than two miles from * * * Brainard, to be approved by the Secretary of War, a dam, canal and the appurtenances thereof, for water-power and other purposes, and in connection therewith a wagon and foot bridge for public travel * * . “Sec. 2. That the right to alter, amend, or repeal this act is hereby expressly reserved without any claim of any kind arising in favor of any party in consequence of such amendment or repeal.” Pursuant to the Special Act, the per-mittee, Mississippi Water-Power and Boom Company (Boom Company) constructed a rock-filled, timber-crib dam across the Mississippi River at Brainerd, Minnesota. The project was completes by 1889 at the site of petitioners’ existing project. Through mesne conveyances Northern Water Power Company, a Minnesota corporation, acquired the property in 1901. Northern Water Pcwer was acquired by petitioner Paper Company in 1910 and in 1936 the subsidiary conveyed the property to Paper Company. In 1916 and 1917 Paper Company constructed and completed a paper mill on the east bank of the Mississippi River adjacent to the dam, and, in order to obtain necessary power, reconstructed the dam and installed new generators. The reconstructed dam and generating equipment remained without substantial change until 1950, when a flood severely undercut portions of the dam, portions of the footings eroded, and the gate sections were virtually destroyed. Paper Company procured the approval of the Army Corps of Engineers and of the Division of Waters of the State of Minnesota Department of Conservation for the reconstruction of the project and pursuant to such authority the dam was reconstructed or rebuilt. Paper Company commenced this proceeding before Commission on April 25, 1963, for a Declaratory Order: “to remove an uncertainty as to the necessity under the Act for the Paper Company to apply for a license for its Brainerd Project. This uncertainty resulted from the Commission’s opinion in Re Public Service Company of New Hampshire, 27 FPC 830, 43 PUR 3d 129 (1962) which contains broad assertions of jurisdiction over all unlicensed hydro-electric projects and indications that the Commission might penalize the proprietors of unlicensed projects who failed to make prompt application for a license.” Commission issued its Declaratory Order on December 9, 1963, finding, among other things, “The project works authorized and constructed under the special act of 1886 (24 Stat. 12) no longer substantially exist. The project twice has been extensively rebuilt and modified. There are only a few vestiges of the original project works, notably certain oak pilings upon which some of the present structures rest. In our view, it may not be presumed that Congress by the special act of 1886 intended to authorize Mississippi Water-Power and Boom Company or Petitioner to replace the project works with new project works, or to increase or reduce the project’s capacity, or otherwise replace or modify the authorized project works. “The first major reconstruction and modification was undertaken in 1916 or 1917 to bring the project’s capacity up to the demands of Petitioner’s new paper plant near the dam site. Apparently, Petitioner does not claim that Northern Power obtained the consent of Congress for this work, as required by sections 9 and 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401, 403). In any event, when Petitioner commenced its construction of project works in 1950, and the installation of new facilities, without having obtained a license pursuant to the provisions of the Federal Power Act, it clearly acted in violation of section 23(b) of that Act.”, and ordered Paper Company to file application for license in accordance with the provisions of the Act. Upon application of Paper Company, the Commission granted a rehearing for further consideration of the issues raised, and stayed its Declaratory Judgment Order. On March 17, 1964, the Commission issued its opinion No. 421 and order on rehearing affirming its prior Declaratory Order, and directed Paper Company to apply for a license for the Brainerd dam project. The Commission’s opinion is reported at 31 FPC 593 and CCH Utilities Law Reports — Federal Report No. 617-9, ¶ 10,446. The broad question presented to the Commission in the.first instance and to us in this review proceeding is whether petitioners are subject to the provisions of the Federal Power Act and are required to procure a license for the continued maintenance and operation of the Brainerd project works. Sec. 23(b) of the Act, as amended August 26, 1935, 49 Stat. 838 (16 U.S. C.A. § 817), in material part provides that it shall be unlawful for any person for the purpose of developing electric power to construct, operate, or maintain any dam across or in any navigable waters of the United States “except under and in accordance with the terms of a permit or valid existing right-of-way granted prior to June 10, 1920, or a license granted pursuant to this Act.” See. 23(a) of the Act, as amended 16 U.S.C.A. § 816), provides that “The provisions * * of this Part shall not be construed as affecting any permit or valid existing right-of-way heretofore granted, * * * or as affecting any authority heretofore given pursuant to law, but any person, * * * corporation * * * holding or possessing such permit, * * * or authority may apply for a license hereunder.” In view of the foregoing exemption provision, resolution of the broad question depends upon the meaning of the Special Act of 1886 pursuant to which the original Brainerd project was constructed. Petitioners’ position is that on its face the Special Act constitutes a clear and unambiguous authorization for the continuing operation and maintenance of the Brainerd dam project — i. e., a valid pre-1920 permit for the project works as they now exist; that the Commission erred in holding that the term of the Special Act was limited to the life of the original works; and, as a corollary to the latter, petitioners contend that the power to construct includes the power to repair or rebuild. Conceding for the purpose of this proceeding that the original congressional grant carried with it the right to maintain any project so constructed, the Commission nevertheless urges that “there is no basis for petitioner’s claim of right to maintain the present reconstructed project.” Additionally, and in this Court for the first time, the Commission advances the proposition that the congressional consent of 1886 was personal in nature and that “there is no possible basis for contending that it [Boom Company] could legally transfer or assign its strictly personal rights thereunder.” While the petitioners agree that the resolution of the issue posed by the Commission, i. e., “whether applicant holds a valid pre-1920 permit for the project works as they now exist,” depends upon the meaning of the Special Act, they assert that the Commission gave such Act a “strained” construction in reaching its “unsupported conclusion.” As suggested by petitioners, it is a basic rule of statutory interpretation that in determining its meaning, a statute shall be considered in its entirety, 2 Sutherland, Statutory Construction, 336 § 4703 (3rd Ed. 1943), and that a statute which is clear and unambiguous on its face is not subject to construction. Blair v. City of Chicago, 201 U.S. 400, 26 S.Ct. 427, 50 L.Ed. 801 (1906); Kansas City, Missouri v. Federal Pacific Electric Co., 310 F.2d 271, 273, 274 (8 Cir. 1962), cert. denied 371 U.S. 912, 83 S.Ct. 256, 9 L.Ed. 2d 171 (1962); 2 Sutherland, Statutory Construction, 334 § 4702 (3rd Ed. 1943). We accept petitioners’ premise that there is no ambiguity in the plain and unequivocal words of authorization “That the consent of the Government is hereby given * * * to construct across the Mississippi River * * * a dam, canal and the appurtenances thereof for waterpower and other purposes * * But such acceptance does not solve the crucial question whether from such consent to construct a dam, etc., for “waterpower and other purposes” the permittee, Boom Company, or its successors, derived rights of an indefeasible nature — in other words, the right to replace the original project works with other and different works in perpetuity, subject only to the limitations contained in the Act. The uncertainty of the meaning of the Act in this regard justifies, indeed requires, application of the rule that “all federal grants are construed in favor of the Government lest they be enlarged to include more than was expressly included.” United States v. Grand River Dam Authority, 363 U.S. 229, 235, 80 S.Ct. 1134, 1138, 4 L.Ed.2d 1186 (1960). See also 3 Sutherland, Statutory Construction, p. 200, § 6402 (3rd Ed. 1943); Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 419, 545, 553, 36 U.S. 419, 545-553, 9 L.Ed. 773 (1837); Louisville Bridge Co. v. United States, 242 U.S. 409, 417, 37 S.Ct. 158, 61 L.Ed. 395 (1917); Bridge Co. v. United States, 105 U.S. 470, 480, 26 L.Ed. 1143 (1881); Reichelderfer v. Quinn, 287 U.S. 315, 321, 53 S.Ct. 177, 180, 77 L.Ed. 331 (1932), where the Court stated: “Statutes said to restrict the power of the government by the creation of private rights are, like other public grants, to be strictly construed for the protection of the public interest.” Under petitioners’ theory, if the original dam and project were completely destroyed subsequent to the adoption of the Federal Water Power Act of June 10, 1920, it could, under the consent given in the Special Act and without interference by the Commission, reconstruct the dam and project. The deduction to be drawn from this position is that, notwithstanding the enactment of the Federal Water Power Act, Congress intended to and did reserve to itself full authority over the project. We are not so persuaded. The various Acts of Congress forming the background for the Federal Water Power Act of 1920, as amended by the 1935 Act, are indicative not only of an intention to fully develop the water power resources, and to protect the national interest, but of an intention to centralize the authority over such resources in one Government agency. See River and Harbors Act of 1890 (26 Stat. 426, 453); River and Harbors Act of 1899 (30 Stat. 1121, 1151); General Dam Act of 1906 (34 Stat. 386); Dam Act of 1910 (36 Stat. 593). This intention was recognized by the Supreme Court in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 180, 66 S.Ct. 906, 919, 90 L.Ed. 1143 (1946) in this pronouncement: “It [Federal Water Power Act of 1920] was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so, instead of the piecemeal, restrictive, negative approach of the River and Harbor Acts and other federal laws previously enacted.” (Emphasis supplied). The 1920 legislation (Federal Water Power Act) created the Federal Power Commission composed of the Secretary of War, Secretary of Interior, and the Secretary of Agriculture. Under Sec. 23 of that Act the provisions thereof were not to be construed as affecting any permit or valid existing right-of-way theretofore granted. That exemption provision was carried into the 1935 Amendment. See Sec. 23(a) thereof. In the 1935 Amendment, Sec. 23(b) was amended to expressly provide for the first time that “It shall be unlawful * * * for the purpose of developing electric power, to construct, operate, or maintain any dam, * * * or other works * * * across, along, or in any of the navigable waters * * * ” except in accordance with a license granted by the Commission or granted prior to June 10, 1920. As we view the history of the water legislation, and having in mind the rule that federal grants are construed in favor of the Government, we are forced to conclude that such legislation was designed to vest in the Commission for the future, the control and jurisdiction which Congress had previously exercised, and that the 1886 grant or permit here under consideration is not susceptible to the interpretation contended for by petitioners. The Commission logically argues, “It is unreasonable to assume, * * * that Congress was delegating to a specialized expert body the obligation of securing comprehensive development of the nation’s power resources, while reserving to itself the responsibility of continued surveillance over all locations where any developments had been constructed under previously granted permits.” We have, of course, examined all authorities cited by the parties in support of their positions. Petitioners rely in particular upon City of Newark v. Central Railroad Co. of New Jersey, 267 U.S. 377, 45 S.Ct. 328, 69 L.Ed. 666 (1925) and Rogers Sand Company v. Pittsburgh, Ft. W. & C. Ry. Co., 139 F. 7 (3 Cir. 1905), and insist that they compel a holding that the 1886 Act must be regarded as a valid pre-1920 permit. As contra authority, the Commission cites a number of pre-1886 cases, such as Carleton v. Redington, 21 N.H. 291, 307 (1850); Cowles v. Kidder, 24 N.H. 364 (1852); Hall, Admr. v. Boyd, 14 Ga. 1 (1853). While the cited cases are relevant, we do not, however, regard them as absolutely controlling or dispositive of the question before us. It follows from what has been said, that the Commission properly concluded that the 1886 permit does not authorize the continued maintenance and operation of the Brainerd project without a Commission license. Accordingly, the Commission’s order is affirmed. . This proceeding was instituted before the Commission by The Northwest Paper Company and that Company filed this review proceeding. After the cause reached this Court upon motion of Commission and by consent of Paper Company, Northwest Paper Company, a Delaware corporation, and Potlach Forests, Inc., a Delaware corporation, apparently transferees of Paper Company, were added as parties to this proceeding. . The above quote is taken from petitioner’s brief. . The findings of fact in the quoted part of the order are supported by the record and are not questioned by the petitioners. Additionally, and by way of summary, the record discloses that the original structure consisted of a rock-filled timber crib supported by 14 inch diameter oak pilings and contained no generating equipment. In 1889-1890 the dam was provided with generating equipment having a capacity of 250 horsepower. In the spring of 1950, after the dam was severely damaged by a flood, the project was “substantially rebuilt and modified” by consolidating the existing rock-filled crib and pile structure in certain areas with pressure pumped concrete to fill voids. At present, a concrete and brick powerhouse, 58 feet by 144 feet, exists housing (1), two pairs of 45 inch, 610 horsepower horizontal water turbines; (2), one pair 32% inch, 520 horsepower horizontal water turbines “direct connected” to a 600 kilowatt, 2300 volt generator; (3), and two pairs of 32% inch, 520 horsepower horizontal water turbines “direct connected” to 900 horsepower 2200 volt synchronous motors used as generators. . Petitioners’ answer is twofold. First, that the Commission made no findings on this issue, and that we are powerless to affirm on this basis, citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 169, 83 S.Ct. 239, 9 L. Ed.2d 207 (1962). Second, that the substantive basis for this argument is devoid of merit. We assume for purpose of this opinion, without deciding the question, that the right or permit was transferable. . The limitations contained in the Special Act in summary are: 1, The Government may at any time construct a suitable lock for navigation purposes; 2, the Government may at any time take possession of said dam and control the same for purposes of navigation by making proper payment; 3, the Secretary of War may require and enforce modifications and changes in the dam; 4, the dam shall, if necessary, be so built that boats may pass through the same. 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_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Everett Guy KIRSCH, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 25294. United States Court of Appeals, Ninth Circuit. Oct. 15, 1971. Erskine Wood (argued), of Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., Sidney I. Lezak, U. S. Atty., Jack G. Collins, Asst. U. S. Atty., Portland, Or., Lawrence F. Ledebur, Chief, Admiralty & Shipping Section, Washington, D. C., for defendant-appellant. Jack C. Ofelt (argued), Julian Herndon, Jr., Portland, Or., for plaintiff-appellee. Before ELY and KILKENNY, Circuit Judges, and LINDBERG, District Judge. The Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation. PER CURIAM: Defendant was the owner and operator of the SS Occidental Victory. Plaintiff Kirsch was a crewman on the vessel. In 1968 plaintiff was injured on board when he was struck by one Hutchison, a Third Assistant Engineer. This suit for damages was then instituted. The District Court found for plaintiff on the theory that Hutchison’s presence on the ship rendered it unseaworthy. This appeal followed. Having reviewed the evidence, we conclude that it does not support the finding of unseaworthiness. We reverse. The general warranty of seaworthiness is that the vessel is “reasonably fit.” The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 43 L.Ed. 241 (1898). As applied to a seaman’s temperament and ability, the warranty “is ‘that he is equal in disposition and seamanship to the ordinary men in the calling.’ ” Stechcon v. United States, 439 F.2d 792, 793 (9th Cir. 1971), citing Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 (2d Cir.), cert, denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952). The questions are whether the behavior was “within the usual and customary standards of the calling,” or whether it was “a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature.” Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, 340, 75 S.Ct. 382, 385, 99 L.Ed. 354 (1955). If his temperament is the latter, then the ship becomes a “perilous place.” Id. It is always an issue of degree. A seaman’s shipboard conduct is not measured by the same standard as the conduct of ordinary men ashore. See Boorus v. West Coast Trans-Oceanic S. S. Line, 299 F.2d 893 (9th Cir. 1962). The altercation in this case arose when Kirsch, who was the chief steward, allegedly failed to have Hutchison’s bed made up. Kirsch and Hutchison had a meeting regarding the matter. Hutchi-son lost his temper during the meeting and struck Kirsch twice with his fists. Kirsch fell over the raised threshold of the entranceway into the meeting room. The fight was pursued no further, and Kirsch was able to work the rest of the voyage. At no time during the argument did Kirsch try to strike Hutchison. The District Court found Hutchison’s action was without cause or justification. The record shows that Hutchison had been in three previous fist fights during his thirty year career, but all three had occurred approximately ten years before the Kirsch incident. He was involved in one further fight subsequent to the Kirsch altercation. The evidence is that none of the fights involved more than the use of hands. Each was short lived. There is no evidence of brutality or viciousness. The District Court, having listened to all the evidence, concluded “there is no question in my mind but that Bill Hutchinson [sic] is a good man. He is a good person; he is a good engineer; he has good character.” We are unable to concur with the District Court that the circumstances of the five fights in Hutchison’s career, in light of all the evidence, indicate a “savage” or “vicious” nature or make the ship he is aboard a “perilous place.” Boudoin v. Lykes Bros. S. S. Co., supra,. The conclusion that Hutchison’s actions made the vessel Occidental Victory unseaworthy must be and is hereby reversed. Upon remand, the District Court will enter its judgment in favor of the defendant, the appellant here. Reversed and remanded, with directions. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_r_state	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. E. A. ZATARAIN & SONS, Inc., v. OHIO SALT CO. (Court of Appeals of District of Columbia. Submitted November 11, 1925. Decided December 7, 1925. Motion for Rehearing Denied December 24, 1925.) No. 1769. Trade-marks and trade-names and unfair competition <©=345 — Registration of trade-mark for use on various condiments held to preclude registration of same mark for use on salt. Registration of trade-mark “Pappoose” for use on condiments, including pepper sauce, table sauce, mustard, catsup, cayenne pepper, and the like, held to preclude another’s registration of same mark for use on salt.' Appeal from Commissioner of Patents. Proceeding for registration of trade-mark by the Ohio Salt Company, opposed by E. A. Zatarain & Sons, Inc. From a decision, of Commissioner of Patents, dismissing opposition and granting registration, opposer appeals. Reversed. E. T. Brandenburg, J. F. Brandenburg, and Lee B. Kemon, all of Washington, D. C., for appellant. G. W. Say well, of Cleveland, Ohio, for appellee. Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from a decision of an Assistant Commissioner of Patents in a trade-mark opposition proceeding, in which the decision of the Examiner of Interferences was reversed and the opposition dismissed. The opposer, appellant here, and its predecessor, long prior to the adoption in 1921 by the applicant, appellee here, of the trade-mark “Pappoose” for use on salt, had built up a very extensive business under the same' mark in connection with the sale of .various condiments, including pepper sauce, table sauce, mustard, tomato catsup, cayenne .pepper, whole and ground pepper, and the like. The Examiner of Interferences found that salt belongs to that class known generally as condiments; that “it is merely one of a group including pepper, mustard, and spices, which are used for seasoning food.” With that postulate, his decision, of course, was against the right of registration by the newcomer. The decisions of this court, upon which he relied, fully sustain his ruling. See Walter Baker & Co. v. Harrison, 32 App. D. C. 272; Simplex Elec. H. Co. v. Gold Car H. & L. Co., 43 App. D. C. 28; Anglo-American I. L. Co. v. Gen. Elec. Co., 43 App. D. C. 385; Fishbeck Soap Co. v. Kleeno Mfg. Co., 44 App. D. C. 6; Canton Culvert & Silo Co. v. Consol. Car-Heat. Co., 44 App. D. C. 491; Gutta-Percha & Rubber Mfg. Co. v. Ajax Mfg. Co., 48 App. D. C. 230; Macy & Co. v. N. Y. Grocery Co., 50 App. D. C. 105, 267 F. 749; Cal. Pkg. Corp. v. Price-Booker Mfg. Co., 52 App. D. C. 259, 285 F. 993; Cal. Pkg. Corp. v. Halferty, 54 App. D. C. 88, 295 F. 229. The wide reputation established by the opposer furnishes the only apparent excuse for the adoption of this mark by the applicant. Decision reversed. Reversed. Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_geniss	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. 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". PUERTO RICO TOBACCO MARKETING COOPERATIVE ASS’N v. McCOMB. No. 4417. United States Court of Appeals First Circuit. April 28, 1950. E. Martinez Rivera, San Juan, Puerto Rico (Luis Blanco Lugo, San Juan, Puerto Rico, on brief), for appellant. Bessie Margolin, Assistant Solicitor, Washington, D. C. (William S. Tyson, Solicitor, and William A. Lowe and Harry A. Tuell, all of Washington, D. C. and Kenneth P. Montgomery, Regional Attorney, Santurce, Puerto Rico, bn brief), for appellee. Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges. WOODBURY, Circuit Judge. The Administrator of the Wage and Hour Division, United States Department of Labor, brought the instant action against the Puerto Rico Tobacco Marketing Cooperative Association to restrain it from violating § 15(a) (1), (2), and (5) of the. Fair Labor Standards Act of 1938, 52 Stat. 1068, 29 U.S.C.A. § 215(a) (1), (2)-,' (.5) with respect to certain of its warehouse and stemmery employees. The court below on stipulated facts and the testimony of one expert witness called by the Administrator, entered judgment for the plaintiff according to the complaint and .the defendant thereupon took this appeal. ■ The defendant is a ’ cooperative associa-' tion incorporated not for pecuniary ‘profit under Insular Act No. 70 of 1925. Laws of' Puerto Rico 1925, p. 368 et seq. It has a principal office in San Juan, and tobacco warehouses and stemmeries in eight other municipalities in the Island. Its warehouse and stemmery operations at Comerio have been stipulated, we take -it because they typify its operations of that kind elsewhere, and it is stipulated that all of its employees there “are engaged in processes or occupations necessary to the production of goods for interstate commerce and, therer' fore, are within the general coverage of' the Fair Labor Standards Act and are entitled to its benefits unless they are exempted by specific provisions of the Act.”' .The; specific exemption provisions involved are those having to do with agricultural employments embodied in §§ '13(a) "(6) and 13 (a) (10) of the Act. The Association handles only tobacco grown by its members, of whom there are about 7,000, and 'each member is under coni tract to market all his tobacco through the Association. The latter by the terms of its contracts with its members takes title to‘ the tobacco as soon as it has “potential existence”,’but the member is responsible for his crop until he delivers it to the Association. Upon delivery the Association grades and weighs the tobacco, and then processes it for marketing exclusively in continental United States. It is stipulated that the Comerio warehouse and stemmery, and on our assumption its other warehouses and stem-meries also, is a “first concentration point” for all tobacco received and worked upon there within the meaning of that term as used by the Administrator in his definition of “area of production” with respect to Puerto Rico leaf tobacco. Regulations Defining Area of Production, as amended December 1946, § 536.2(a) (2) and (c). . The members first dry their tobacco in barns or sheds on their, premises and then deliver it at the Association’s warehouses in loose bales or bundles weighing about one quintal, or one hundred pounds.. There it is first weighed and receipted for and then graded according to type and quality. Following this the tobacco is put into piles known locally as “estibas” of about 150 quintales and allowed to ferment under controlled conditions of temperature for about two months, during which time the piles are torn down and rebuilt by moving the inside leaves to the outside of the pile, and vice versa, some six or eight times as the fermentation process requires. When this fermentation process, known as bulking, is completed the tobacco is stacked for 'later stemming. When the stemming season starts the fermented tobacco is reclassified into tobacco of inferior quality, known as “boliche”, and tobacco of superior quality. The “boliche” is not stemmed, but merely fumigated and packed for shipment. The tobacco of superior quality which is to be stemmed is first dipped in water to soften it for the purpose, and then the moistened leaves are left in piles for several days. After this the piles are separated into packages called “pesadas” weighing 5 or6 pounds and these “pesadas” are wrapped in cloth and taken to a steaming room from which they are later removed for delivery to the stem-mers. Stemming consists in removing the central vein or rib from the tobacco leaf. It is performed manually, usually by women, who hold the point of the vein or rib in their teeth and pull away the sides of the leaf with their hands. The separated leaves of tobacco after stemming are roughly classified by the stemmer and stacked by her on the bench at which she works. Employees known as reviewers check her work, and then carry the stemmed leaves to a place in the warehouse where they are collected for baling into bulks or “’tongas” for a second fermentation process similar to the one already described, but lasting only about a month. When the second fermentation process is complete, the tobacco is dried, sorted, classified according to quality, and packed for shipment to the United States. In addition to the employees engaged in the processes described, the Association also has two or three employees in each warehouse who work during the harvesting season in dispatching material such as fertilizer, cord, Paris green, etc., to the members, and one or more others who deliver this material to the members by truck. It also employs laborers who move tobacco from place to place in the warehouses to prevent spoilage by heat, other laborers who collect,' clean and fumigate the scrap tobacco resulting from the stemming process, repair and maintenance men, men who move bales of tobacco ready for shipment, and persons who perform the necessary supervision, clerical and office work. The Administrator concedes, but only for the purpose of this case, “that within the meaning of the applicable regulations and terms of the law, employees engaged in the receipt of stalk-out-tobacco, in the classification and bulking of such tobacco and in the reclassification, packing, moving and fumigating of such tobacco prior to stemming are exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act, by virtue of Section 13(a) (10) when they are engaged in the listed occupations in an establishment which is a first concentration point for such tobacco.” And, as already pointed out, the Administrator also concedes that the defendant’s warehouses and stemmeries are in fact first concentration points for tobacco within his own definition. Furthermore the Administrator concedes that the defendant has paid at least the legal mipimum wage of 27 cents per hour to all of its employees engaged in processing operations from wetting in preparation for stemming on to final shipment. Nor does he allege that the defendant has violated any of the provisions with respect to maximum hours of employment contained in § 7 of the Act. The conduct of the defendant, which it admits, of which the Administrator complains is the employment of certain of its employees during the same workweek both on work which he concedes is exempt from the minimum wage provisions of the Act and on work which he contends is not exempt, and the payment of those employees at the rate of 27 cents per hour for their time on allegedly non-exempt work but only 25 cents per hour for their time on conced-edly exempt work. He contends that this split workweek basis for paying these employees is in violation of the Act; they being entitled to the 27 cents per hour minimum wage for every hour worked in every week in which any part of their work is non-exempt. And the Administrator also contends that the defendant has failed to keep the records required by § 11(c) of the Act with respect to its stemmers, who are paid piece rates, although he concedes that these employees are not employed more than 40 hours in any workweek and are paid substantially more than the legal minimum wage. The defendant on this appeal rests its defense solely upon the broad dual proposition, first, that all of its employees are exempt from the provisions of the Act for the reason that they are employed in agriculture, within the meaning of § 13(a) (6), and second, that they are also exempt from the provisions of the Act for the reason that they are employed within the area of production in handling and preparing agricultural commodities in their raw or natural state for market, within the meaning of § 13(a) (10). The defendant’s contention that its employees fall within the exemption of § 13(a) (6) because they are “employed in agriculture” as' that term is defined in § 3(f) must be categorically rejected on the authority of Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, in which the Supreme Court rejected the same contention with respect to the employees of an incorporated mutual ditch company organized on a non-profit basis by a group of farmers in Colorado for the purpose of collecting, storing, and proportionately distributing water to its farmer-members for irrigation purposes. In- its opinion in the above cited case the court pointed out, 337 U.S. at page 762 et seq., 69 SJCt. at page 1278, that the definition of agriculture in § 3(f) had two branches — first a-“primary meaning” which includes “farming in all its branches”; specific farming practices, such as cultivation and tillage of the soil, dairying, etc. being listed as illustrative, and a secondary broader meaning which includes “any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with” farming operations within the primary definition. Then the court said that -clearly the operations of the irrigation company, and we must say the same with respect to the operations of' the defendant marketing company, did not fall within the primary meaning of agriculture as defined in the above section of the Act for the reason that it owned no farms and raised no crops, and hence could not be said, 337 U.S. at page 764, 69 S.Ct. at page 1279, to be “engaged in cultivating or tilling the soil or in growing any agricultural commodity.” Following this the Supreme Court rejected the contention, not advanced in the case at bar, that the employees of the irrigation company come within the exemption because its activities were necessary to the production of agricultural commodities, and then, coming to the secondary branch of the definition, the court pointed out that to qualify for exemption the work must be done “by a farmer or on a farm.” It then said, and we must say also: “In the present case it is clear that the work of the company’s employees is done neither on a farm or by farmers.” The Supreme Court next went on to state and reject a further argument advanced by the irrigation company, and one also advanced by the marketing company in the case at bar. The -court said, referring to the work of the employees of the irrigation company, “Clearly, it is not done on a farm. Nor, we think, is it done ‘by a farmer.’ Since we have already said that the company’s employees are not engaged in farming, it is perhaps too obvious that the work that they do is n-ot done by farmers. But an argument to the contrary is made. It is based on the fact that the company is a'mutual one, owned by the farmers whom it serves. It is argued that the company is therefore merely a formal' conduit or agent, by which the farmers cooperatively operate their common water supply system and cooperatively employ the men'. The men are, therefore, said to be farmers because they are said to be employed by farmers.” The Supreme Court answered the above argument by first pointing out that “There is a difference between the hiring of mutual servants by a group of employers and the creation by them of a separate business organization, with its own officers, property, and bonded indebtedness, which in turn hires working men”, and then pointing out that “Those working men are in no real sense employees of the shareholders of the organization. They are hired by the organization, fired by the organization, -controlled and directed by the organization, and paid by it.” And following this the court continued: “The fact -that the organization is a corporate one adds to the picture but is not controlling. The controlling fact is that the company has been set up by the farmers as an independent entity to operate an integrated, unitary water supply system. The function of supplying water has thus been divorced by the farmers from the farming operation and set up as a separate and self-contained activity in which the farmers are forbidden, by the company's by-laws, to interfere. Those employed in that activity are employed by the -company, not by the farmers who own the company. The fact that the company is not operated for profit is immaterial. • It is nonetheless the employer.” On the basis of the foregoing the court concluded that the irrigation company employees were not exempt under § 13(a) (6) from the coverage of the Act. The Farmers Reservoir & Irrigation Co. case is squarely in point in all material respects and rules the case at bar so far as § 13(a) (6) is concerned. Indeed the language of the Supreme Court in that case is directly applicable, nmtatis nmtandis, to the case at bar. See also to the same effect the decisions of this court in Bowie v. Gonzalez, 117 F.2d 11; Calaf v. Gonzalez, 127 F.2d 934; Vives v. Serralles, 145 F.2d 552, and McComb v. Super-A Fertilizer Works, 165 F.2d 824. We turn, therefore, to the defendant’s further contention that its employees are nevertheless exempt under § 13(a) (10) of the Act which in so far as material provides that the minimum wages and maximum hours sections of the Act, §§ 6 and 7, shall not apply with respect to “any individual employed within the area of production (as defined by the Administrator), engaged in handling, packing, storing, * * * drying, preparing in their raw or natural state * * * agricultural or horticultural commodities for market * * The argument of the defendant is that its employees are working in an area of production as defined by the Administrator, which he admits, and that they are engaged in handling and preparing for market an agricultural or horticultural commodity, which the Administrator concedes, in its raw or natwral state, which the Administrator denies. The crucial words are those in italics; the specific question being whether tobacco continues to be in its “raw or natural state” after stemming or whether it does not. The court below found as a fact on the testimony of the Administrator’s expert witness that the process of fermenting leaf tobacco as described in the stipulation “produces a chemical change in the tobacco by making it milder and sweeter”, [80 F.Supp. 953, 954] and in the course of its memorandum opinion that court held “that the stemming and fermenting of leaf tobacco are operations which change the form and nature of the tobacco and is a processing operation rather than ‘handling, packing, storing’”, etc. of agricultural or horticultural commodities “in their raw or natural state”. Wherefore that court concluded as matter of law that: “Defendant’s employees engaged in fermenting leaf tobacco and in stemming leaf tobacco and in any handling of tobacco subsequent to those operations are not engaged in handling, packing, storing, drying or preparing tobacco in its raw or natural state within the meaning of Section 13(a) (10) of the Fail-Labor Standards Act of 1938.” Consequently, in view of its holding that the defendant’s employees were not engaged in agriculture within the meaning of § 13(a) (6), with which we agree, and its conclusion that the split workweek basis for paying some of its employees violates the Act and that the stemmers’ records were not kept as the Act requires, with which we are not concerned, it entered the judgment for the Administrator from which this appeal was taken. As the economy of this country is now organized almost all agricultural commodities pass through a series of handling, packing, storing, ginning, compressing, pasteurizing, drying or preparing processes on their way from the farm to the ultimate consumer. And, for reasons not far to seek, see Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, 18, it was obviously the purpose of the framers of the Fair Labor Standards Act of 1938 by it § 13(a) (10) to exclude from the benefits of the Act “any individual employed” in any of the above processes with respect to agricultural or horticultural commodities, provided, first, that the employment was within the area of production as administratively defined, and second, that the employee, except for cannery and creamery employees, who are specifically mentioned, was engaged in working on commodities of the kinds described “in their raw or natural state.” The problem here is to determine at what point in the course of preparation for market leaf tobacco passes from its “raw or natural” state. The words “raw” and “natural” in their statutory setting defy definition in broad terms generally applicable to all agricultural or horticultural commodities. “Raw” is the antithesis of “cooked”, and cooking connotes a chemical change wrought by heat. Thus, since fermenting also produces a chemical change- and usually implies heat, or at least warmth, it may perhaps be likened to slow cooking. But cooking ordinarily implies the application of heat by human means from some source outside the thing cooked, whereas, when conditions are right, ferménting occurs spontaneously and naturally within the thing fermented. And furthermore, the latter process may involve so little heat as to make application to it of the term “cooking” wholly inappropriate. • Moreover, while Cooking and fermenting both produce chemical changes, so also, no doubt, does ripening, and in the case of fruits, the chemical change incident to ripening makes the fruit sweeter and milder. But -certainly ripening cannot appropriately be likened to cooking, or, in all probability, to fermenting. Similar problems arise with respect to the word “natural”. There can be no doubt that Indian corn ceases to be in its natural state as soon as it is ground. But does it remain in its natural state throughout the entire course of its processing previous to grinding, which involves breaking from the stalk, husking, drying and shelling from the cob? A host of other illustrative problems come to mind, but enough has been said to indicate the inherent difficulty, if not the impossibility, of formulating any workable definition of the statutory words applicable generally to all agricultural or horticultural commodities. Specific situations will have to be considered as they arise, and in keeping with the spirit and purpose of the Act a line drawn between exempt and non-exempt employment in accordance with the statutory wording. And, this line must be drawn by the courts, Addison v. Holly Hill Fruit Products, 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488, 153 A.L.R. 1007, so that of necessity it must be pricked out by the slow process of deciding concrete cases as they arise. In this case we agree with the line of distinction with respect to leaf tobacco drawn by the court below. Perhaps within the statutory wording it might possibly be drawn a step earlier in the processing, i. e., at the first fermenting, rather than at stemming, but the Administrator’s concession that workers engaged in processing prior to stemming are exempt makes it unnecessary for us to -consider the point. Whether leaf tobacco conies fr-om the first fermentation process “raw” or-not, a very close question perhaps, the leaf certainly was not in its natural state after its central vein or rib was removed. This changed its form. The process is comparable to grinding a cereal grain, for instance, and we think clearly marked the line between exempt and nonexempt work. Our judgment is perhaps arbitrary in the sense that the line could conceivably be drawn somewhere else without doing violence to the statutory language, but in cases of this sort arbitrary judgments in this limited sense cannot wholly be avoided. The best that can be done is to draw a line of distinction with respect to each commodity at some practical point within the statutory language, and this in our opinion is exactly what was done by the court below. We, therefore, agree with the conclusion it reached. The judgment of the District Court is affirmed. Wage Order for the Leaf Tobacco Industry in Puerto Rico promulgated by the Administrator pursuant to §§ 5 and 8 of the Fair Labor Standards Act, which bo-came effective, after publication in the Federal Register, on April 1, 1945. Title 29, Ch. V, Code of Federal Regulations, Part 657. 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_initiate	B	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. HAYFORD v. DOUSSONY et al. Circuit Court of Appeals, Fifth Circuit. May 17, 1929. No. 5390. Eugene S. Hayford, of New Orleans, La., in pro. per. J. L. Warren Woodville, of New Orleans, La., for appellees. Before WALKER, BRYAN, and FOSTER, Circuit Judges. WALKER, Circuit Judge. The appellees filed a libel in admiralty against “the Pleasure Boat ‘Pirate Ship’ or ‘City of Marietta’ ” for the recovery of wages alleged to be owing to them as mariners. The appellant, the owner of the structure proceeded against, duly raised the question of its being subject to the jurisdiction of the court as a court of admiralty. The evidence showed the following: The Pirate Ship, formerly the United States gunboat Marietta, was an old, dilapidated ship of wood and steel construction, which, at considerable expense, had been refitted as an amusement or dance barge, and, after being so refitted, was towed to the Canal street dock at the foot of Canal street in the city of New Orleans, and lay there from March, 1927, until June, 1927, when it was seized under the warrant issued under the libel filed in this cause. The Pirate Ship was secured to the dock, not like an ordinary ship, but with cables and clamps, the cables having eight or ten turns around clusters of piling. A permanent gangway was built ashore, with a house over it extending to the wharf, the gang plank being secured to the hull with seven or eight one-inch pins. Electric wires and water pipes connected the structure with the shore. The structure was intended by its owner to be used, and was used by him, only as a dance platform permanently secured to the dock at all times when so used, and at no time was used or intended to be used for transporting freight or passengers. None of the libelants were employed as mariners or in any way in the capacity of seamen. During the time in 1927 when the Mississippi river was high the Pirate Ship, on the Order of the manager for the board of port commissioners, and over the protest of appellant, was towed to the St. Andrews street wharf, and it was towed to West End after the seizure in this ease. The Pirate Ship was not used, or intended to bo used, to carry freight or passengers from one place to another, was not an instrument of navigation or commerce, and performed no function that might not have been performed as well by a floating stage or platform permanently attached to the land. A result of it not being a vessel or instrument of navigation or commerce engaged in any maritime venture was that a maritime lien did not attach for the compensation for the services rendered by any of the libelants. Evansville & Bowling Green Packet Co. v. Chero Cola, etc., Co., 271 U. S. 19, 46 S. Ct. 379, 70 L. Ed. 805; J. C. Penney-Gwinn Corporation v. McArdle (C. C. A.) 27 F.(2d) 324. The fact that for purposes foreign to those for which, it was intended and adapted to be used it was towed to and from the place where it was used for dancing and amusement was not enough to bring it within the admiralty jurisdiction. The Hendrik Hudson, Fed. Cas. No. 6355. On the state of facts disclosed, the libel was not maintainable, the claims asserted not being within the admiralty jurisdiction. The decree is reversed. 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_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". FEMINIST WOMEN’S HEALTH CENTER, INC., a Florida non-profit Corporation, Plaintiff-Appellant Cross-Appellee, v. Mahmood MOHAMMAD, M. D., et al., Defendants-Appellees Cross-Appellants. No. 77-1924. United States Court of Appeals, Fifth Circuit. Dec. 20, 1978. Thornberry, Circuit Judge, filed opinion specially concurring. See also, D.C., 415 F.Supp. 1258. Betty Owen Stinson, Steven L. Seliger, Kent Spriggs, Tallahassee, Fla., for plaintiff-appellant. Nadine Taub, Women’s Rights Litigation Clinic, Joan Friedland, Newark, N. J., amicus curiae for American Public Health Assoc., Nat’l Abortion Rights Action League & American Civil Liberties Union. Murray M. Wadsworth, M. Stephen Turner, Tallahassee, Fla., for Curry. John C. Cooper, Tallahassee, Fla., for Griner. J. Lewis Hall, Jr., Anne C. Booth, Tallahassee, Fla., for Messer. E. Harper Field, Frank J. Santry, Tallahassee, Fla., for Mohammad, Curry, Crane, and Griner. Michael I. Schwartz, Stephen Marc Slepin, Tallahassee, Fla., for Palmer. Before WISDOM, THORNBERRY and RUBIN, Circuit Judges. WISDOM, Circuit Judge: This appeal from an antitrust summary judgment raises questions concerning the jurisdictional reach of the Sherman Act, the scope of the Noerr-Pennington defense, the Parker doctrine of state action immunity, and the applicability of Florida’s anticombination statute to the medical profession. The Feminist Women’s Health Center, Inc. (“the Center”), brought this action for injunctive and monetary relief against Drs. Mohammad, Curry, Knight, Crane, Griner, Messer, and Palmer (individually and in his capacity as Executive Director of the Florida Board of Medical Examiners (“BOME”)). The Center alleged that the doctors conspired to boycott the Center’s Tallahassee abortion clinic, and to fix the prices for abortions in the Tallahassee area in violation of federal and state antitrust laws. The Center further alleged that the doctors individually, and in combination, attempted to, and in fact did, monopolize the market for providing women’s health and abortion services in the Tallahassee area. In addition, the Center complained that certain tactics used by the defendants amounted under Florida law to tortious interference with the Center’s business relationships with its physicians. After extensive pretrial discovery, the trial court granted summary judgment in favor of all defendants on all counts, and the Center brought this appeal. The doctors cross-appeal the trial court’s early ruling denying their motion for summary judgment for lack of subject matter jurisdiction. We affirm the trial court’s jurisdictional ruling and its order with respect to the state law antitrust counts and reverse on all other points. I BACKGROUND Because this appeal arises from a summary judgment, the statement of the background of the case is drawn from a record that reflects numerous disputed or potentially disputable issues of fact. Summary judgment having been entered against the plaintiff Center, the following discussion views disputed issues of fact in a manner favorable to the plaintiff. The Feminist Women’s Health Center, Inc., a Florida nonprofit corporation, operates the Women’s Choice Clinic, a women’s health and first trimester elective abortions clinic in Tallahassee, Florida. The Center was incorporated in 1974 and opened its office in Tallahassee on June 29, 1974. The Center employs ten to fourteen lay “health workers” and occasionally a laboratory technologist, a registered nurse, and a nurse-practitioner. The Center does not keep full time physicians on its staff, but rather uses physicians on a part-time basis to perform abortions, and, when possible, to provide “back-up” emergency services when patients develop post-operative complications. The Center charges about $150 for an abortion, $25 to $35 of which is paid by the Center to the operating physician. Defendants Mohammad, Curry, Crane, Knight, Griner, and Messer are Tallahassee physicians specializing in obstetrics and gynecology. All are members of the gynecology and obstetrics staff (“OB-GYN Staff”) of Tallahassee Memorial Hospital, the only hospital in Leon County, Florida, that has complete facilities for treating patients with obstetrical and gynecological problems. Defendant Palmer is a physician who practices in Tallahassee, and is Executive Director of the Florida Board of Medical Examiners, the body that licenses physicians and regulates the practice of medicine in the State of Florida. Even before it opened its doors, the clinic was a matter of concern to the obstetrics and gynecological staff of Tallahassee Memorial. At its regular monthly staff meeting in May, 1974 the OB-GYN Staff adopted a resolution that it would not “approve” the Center if no member of the hospital staff were associated with the Center. The resolution, according to Dr. Brickler, the member of the OB-GYN Staff who first brought the Center to the staff’s attention, was intended to express the staff’s concern that the clinic have an “acceptable” local physician who would be available to take care of post-operative emergencies. Despite some initial difficulties in recruiting physicians, the clinic operated without substantial controversy its first year. In the Spring of 1974, Lynn Heidelberg and Linda Curtis, two of the Center’s directors, approached Drs. Brickler and Mohammad about working at the clinic. According to Ms. Curtis, Dr. Mohammad initially expressed interest in doing so, but at a second meeting changed his mind, citing pressure from his colleagues as well as the May resolution of the OB-GYN Staff. Dr. Mohammad indicated that he might consider working at the clinic, but only at a fee of $100 per procedure, a figure that is approximately triple the fee customarily received by operating physicians at the clinic. Dr. Brickler, on the other hand, decided to work at the clinic after having initially expressed fears that the OB-GYN Staff would disapprove of his doing so. Dr. Brickler informed the Center, however, that he would associate with the clinic on the condition that the clinic not advertise its services. The Center agreed and Dr. Brickler began his work for the clinic. In April 1975 Dr. McWilliams, another member of the Tallahassee Memorial OB-GYN Staff, began performing abortions at the clinic and handling post-operative aftercare. Drs. Brickler and McWilliams performed 816 abortions at the clinic that first year. The clinic’s difficulties began in June of 1975 when Linda Curtis gave an interview to the Tallahassee Democrat, the city’s daily newspaper. The interview resulted in the publication in the June 20 edition of the Democrat of an article in which Ms. Curtis described the clinic and favorably compared its services with hospital abortion procedures. In particular, the interview emphasized the relative inexpensiveness of first trimester elective abortions at the clinic, and the advantages to women of choosing a place where “women set the pace for what goes on”. The next day, Dr. Brickler terminated his relationship with the clinic, apparently because of the article. The newspaper article succeeded in making the clinic, once again, a subject of great interest to the OB-GYN Staff at Tallahassee Memorial. At the July 1, 1975 meeting of the OB-GYN Staff, at which Drs. Messer, Griner, Crane, and Mohammad were present, Dr. Messer noted that Dr. Brickler was no longer working at the clinic and that an out-of-town physician was working there. The staff discussed the question of the ethics of the clinic’s advertising, and concluded that physicians should not associate with organizations that advertise their medical services. The staff decided to bring the matter of the clinic’s advertising to the attention of the State Board of Medical Examiners. The minutes of that meeting record that “Dr. Brickler commented he feels the local situation will collapse if it does not get support from the Obstetricians”. A day or so after that meeting, Dr. McWilliams, who had attended the meeting, called the Center to inform it that he could not continue working at the clinic unless the controversy concerning the clinic’s advertising was straightened out. He informed the clinic that Dr. Mohammad was upset about the newspaper article. In the days following the July 1 meeting Ms. Curtis met with Dr. Mohammad, who said that the Center should stop all advertising and that those associated with it should not make speeches about the Center. At that time Dr. Mohammad agreed to arrange an emergency meeting of the OB-GYN Department so that representatives of the Center could meet the other members of the staff. When Ms. Curtis and another director of the Center arrived for the emergency meeting on July 8 or 9 only Dr. Mohammad was present. Dr. McWilliams stated in his deposition that he was notified of a meeting earlier that day, but was not informed about the purpose of the meeting and therefore failed to attend. No further meeting was scheduled. Dr. McWilliams testified that he again raised the question of such a meeting with Dr. Mohammad, but Dr. Mohammad informed him that he had polled the other members of the staff and that no one wished to meet with representatives of the Center. At the next monthly meeting of the 0B-GYN Service on August 5, 1975, the staff passed a motion that the Service write a letter to the Capitol Medical Society (“CMS”), a private organization of Tallahassee area physicians, expressing the doctors’ view that physicians in the CMS should not associate with organizations that advertise their medical services. Dr. McWilliams spoke up to explain that he was unaware when he began working for the Center that the clinic was controversial because of its advertising and its nonprofit status. He revealed to the staff that he had told the clinic of his plans to leave if the controversy was not settled. Four days later, he told the Center that he would have to leave, citing the controversy and his desire not to fall into disfavor with his colleagues. As Dr. McWilliams explained in his deposition, he chose to leave “because of something that I was doing that they [the Tallahassee OB-GYNs] considered unethical”. Shortly thereafter, Dr. McWilliams left the clinic. About the time that Dr. McWilliams left the clinic, the Center called upon Dr. Brickler, who had severed his relations with the clinic some months earlier, in an effort to recruit him to handle backup or post-operative emergencies, either on a formal or an informal basis. Dr. Briekler, according to his deposition, told the Center that if it referred a patient to his office for post-operative care he would see the patient, just as he would see any other patient. He declined, however, to enter any formal arrangement with the Center. Briekler indicated that to do so would involve him in controversy with his fellow obstetricians. The OB-GYNs, according to Brickler’s deposition, “almost literally sleep together”, and his colleagues could make things very unpleasant for him; they could, for example, refuse to take his patients were he to leave town. Beginning in July or August 1975, the clinic began to rely heavily on the services of residents-in-training at the University Hospital in Jacksonville. The Center had arrangements with the Jacksonville residents that they would come to Tallahassee one day a week to perform abortions at the clinic. On August 29 the OB-GYN Staff sent a letter to defendant Palmer, Executive Director of the BOME, stating that out-of-town doctors were performing surgery at the clinic without adequate provision for continuous aftercare, in possible violation of the Florida Medical Practice Act. The letter requested Dr. Palmer to take “appropriate corrective measures”. Acting on the staff’s complaint, as he was required to do by law, Dr. Palmer visited the clinic, accompanied by Ed McCollum, the Chief Investigator of the BOME, to view its operations and to determine what doctors were practicing there. He found that Dr. Walker Whaley, a resident physician from University Hospital in Jacksonville, was performing abortions at the clinic. Dr. Palmer inquired about aftercare coverage of the clinic’s abortion patients, and was told by Ms. Curtis that the clinic had arrangements with Tallahassee Memorial to take care of post-operative complications. Later that day, Dr. Palmer called the hospital concerning the clinic’s backup coverage. The hospital administrator informed Palmer that the backup arrangements were not formal, but that he had told Ms. Curtis that any clinic patient could come to the hospital’s emergency room for attention, as in the case of any person in need of immediate medical care. Dr. Palmer then called Dr. Whaley on the telephone. After first identifying himself as the Executive Director of the BOME, and telling Dr. Whaley that the telephone call was personal in nature, Palmer told Whaley that his, Dr. Whaley’s, activities were not in his opinion illegal, but that his personal advice was that it might be in Whaley’s best interests to leave the clinic. Dr. Palmer thought that it was unwise for the young physician to get involved in something as controversial as the clinic. He pointed out that the aftercare arrangements were in his opinion' ’’questionable”, and that Dr. Whaley was running a risk of malpractice liability because he could not follow up on his patients at Tallahassee Memorial Hospital inasmuch as Whaley did not have staff privileges at Tallahassee Memorial, nor a Tallahassee or Leon County occupational license. Following his conversation with Dr. Whaley, Palmer called Dr. Mohammad to report his findings. On September 30, Dr. Palmer sent another investigator to the clinic to determine if the clinic, at that time, had a licensed physician performing abortions. At the September 2, 1975 meeting of the OB-GYN Staff of Tallahassee Memorial, at which Drs. Crane, Curry, Griner, Messer, and Mohammad were present, the staff voted to send a letter to the residents at University Hospital in Jacksonville who were performing abortions at the clinic. The purpose of the communication was to inquire of the doctors whether proper aftercare was being provided for the patients on whom the doctors were performing abortions at the Tallahassee clinic. On September 10, a letter, signed by all the defendants with the exception of Dr. Palmer, was sent not to the residents but to Dr. Robert Thompson, the head of the residency program at University Hospital. The letter stated: In the last monthly meeting of the OB-GYN Staff at Tallahassee Memorial Hospital, the subject of the Feminist Womens’ Health Clinic was brought up, and the fact that one or two of the residents from your program performed abortions without provision for possible complications and leave patients without provision for 24-hour coverage was discussed. For your information, the Feminist Womens’ Health Center has no backup for abortions performed and there is no physician in town covering aftercare complications of procedures done. Dr. Whaley returned to the clinic after Dr. Palmer’s call, but he told the Center that he could not work for them until the controversy was resolved. Dr. Whaley testified in his deposition that the aftercare problem was not the main reason that he left the clinic. His primary concern, he said, was the controversy between the clinic and the Tallahassee medical community. He ultimately left the clinic, he testified, because of the advice given him by several people. Another of the residents at University Hospital in Jacksonville, Dr. Rhett, left the clinic in mid-September of 1975, following the staff’s communication to Dr. Thompson. According to Dr. Rhett’s deposition, he left the clinic because he could not get a straight answer from the clinic concerning its aftercare arrangements. He also testified that he felt threatened professionally by the controversy surrounding the Center. The Center brought suit charging that the doctors had conspired to monopolize and restrain trade in the provision of abortions and related services, in violation of §§ 1 and 2 of the Sherman Act and § 542.05 of the Florida statutes. The Center also charged that the doctors had unlawfullyjnterfered with the Center’s contractual relations with its physicians. Following the GenterVTiling of the complaint, the Capitol-Medical Society passed a resolution, coauthoredrby Dr. Palmer, to support the defendq^its-dn the prosecution of this litigation. The-Genter, throughout this litigation, has citedJJie Capitol Medical Society’s resolution as the “consummation” of the alleged conspiracy. On June 9, 1976 the trial court denied the Center’s motion for a preliminary injunction. The court found that the plaintiff had demonstrated a substantial likelihood of prevailing on the merits of its claims against all defendants except Dr. Palmer, but that there was no likelihood that the Center would suffer irreparable harm pending adjudication of the cause. Feminist Womens’ Health Center v. Mohammad, 1976, N.D.Fla., 415 F.Supp. 1258. The court intimated, in that order, that the “state action” defense of Parker v. Brown, 1943, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, might be applicable to Dr. Palmer. In a pretrial order of September 3 the court granted Dr. Palmer’s motion for summary judgment. On December 3, the court rendered summary judgment in favor of the remaining defendants. II THE REACH OF THE SHERMAN ACT At the outset we face the question whether the district court had subject matter jurisdiction of this action. Jurisdiction is predicated upon §§ 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15 and 26, which grant the federal district courts jurisdiction of private actions for treble damages and injunctive relief, respectively, to redress injuries resulting from violations of the federal antitrust laws. The appellees argue that subject matter jurisdiction is lacking because the action complained of does not have the effect on interstate commerce requisite to liability under the Sherman Act. If the Center has not stated a claim under the Sherman Act, then the federal court, of course, lacks jurisdiction of the pendent state law claims. Section 1 of the Sherman Act outlaws every combination or conspiracy “in restraint of trade or commerce among the several States”. Section 2 of the Act prohibits monopolization of, and attempts and conspiracies to monopolize “any part of the trade or commerce among the several States.” It has been said that “this language defines both the prohibited conduct and the jurisdictional range of the statute.” Comment, 21 Vill.L.Rev. 721, 725 (1976); see also Rasmussen v. American Dairy Ass’n, 9 Cir. 1972, 472 F.2d 517, 521. The Supreme Court has construed the Sherman Act as reaching the full extent of the Congress’s power under the commerce clause. Whether the conduct complained of falls within the scope of the Sherman Act’s “jurisdiction” turns on whether it has or could likely have a substantial effect on interstate commerce. E. g., International Salt Co. v. United States, 1947, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665. The district court determined, after a full evidentiary hearing on the matter, that it had jurisdiction of the Center’s claims. The court made the following findings. (1) Tallahassee, Florida, where the clinic is located, is within 30-35 miles of the Georgia state line. (2) Tallahassee is a center for health care in the northern Florida-southwestern Georgia area. (3) From June 1974 to September 1976, 2,177 abortions were performed at the plaintiff’s clinic, 176 (or 8%) of which were performed on persons who came from outside the state of Florida. Abortions for out-of-state patients brought the plaintiff roughly $26,400 in gross receipts. (4) From June 1974 through April 1976 the Center received $562.00 in payments from out-of-state insurance companies for abortions performed at the clinic. (5) From June 1974 through September 1976 the Center made out-of-state purchases of $10,017.34 of supplies and equipment to be used in connection with the provision of abortion services. At least $9,845.34 of these supplies were purchased in the period of June 1974 to April 1976. (6) In that same period the Center purchased $15,-493.79 of supplies from within the state of Florida. (7) From June 1974 through July 1976 the Center spent $4,340.65 on interstate travel by its officers and employees. (8) From the Center’s inception, the volume of patients and the gross income of the clinic steadily increased. The district court found that the clinic had developed significant contacts with interstate activity, and that its interstate connections are likely to grow as the business grows. Taking the allegations of the complaint as true, the court concluded, the clinic and its interstate business were seriously threatened by the defendants’ actions. The defendants do not quarrel with the district court’s findings of fact, but do contest its conclusion that the facts show a quantum of interstate involvement sufficient to sustain Sherman Act jurisdiction. They argue that the Center’s business is not converted into an interstate business by virtue of the clinic’s treatment of patients who travel from other states to use its services. Indeed, they seem to maintain that the flow of out-of-state patients must be ignored altogether. Once the interstate flow of patients is discounted, the physicians contend, the interstate connection is de minimis and certainly far more tenuous than any that has been held sufficient for Sherman Act purposes in any reported case. We disagree with both contentions; we hold that the district court did not err. Although the mere fact of dealings with out-of-state customers, whether or not those customers cross state lines for the purpose of buying a firm’s goods or services, might not of itself establish a sufficient interstate nexus, it does not follow that those dealings are of no pertinence whatsoever. The Sherman Act reaches conduct that is likely to have a substantial adverse effect on interstate commerce, a question, as we have emphasized in prior decisions, that is to be determined from the aggregate of factors. St. Bernard General Hospital, Inc. v. Hospital Service Ass’n, 5 Cir. 1975, 510 F.2d 1121, 1125; Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, 48, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665. The plaintiff’s business with out-of-state patients is one of the factors to be considered. Were the Center forced to close the Tallahassee clinic, the flow of persons crossing state lines to avail themselves of the clinic’s services would cease. That the patients come to the plaintiff, and not the plaintiff to the patients, does not alter the interstate character of those transactions. Looking to the aggregate of factors, including the clinic’s volume of out-of-state patients, we cannot say that the Center has failed to demonstrate a likelihood of substantial impact on interstate commerce. There is, of course, no ready and easy test for determining whether particular restraints have, or will likely have, the requisite effect on interstate commerce. As the Third Circuit Court of Appeals has observed, “the precedent in this area is unlikely to dictate the outcome in any given case. Instead, it is more likely to communicate a general sense as to how much of an impact local activities must have upon interstate commerce before they confer jurisdiction.” Doctors, Inc. v. Blue Cross of Greater Philadelphia, 3 Cir. 1973, 490 F.2d 48, 51. The interstate effects alleged here are well within the boundaries suggested by the “general sense” of our decisions on Sherman Act jurisdiction. In Lehrman v. Gulf Oil Corp., 5 Cir. 1972, 464 F.2d 26, cert, denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665, this Court upheld jurisdiction in a case analogous to this one in its jurisdictional aspects. Lehrman was a private antitrust suit by a Gulf service station operator. Lehrman sought to recover damages that resulted from the effect on his business of Gulf’s wholesale pricing practices. He urged that Gulf's pricing policies, by preventing him from engaging in price competition with nearby competitors, forced him out of business. Although we assumed, for purposes of the appeal, that the gasoline sold by the plaintiff never moved in interstate commerce, we nevertheless held that Gulf’s conduct substantially affected interstate commerce. Two distinct and sufficient grounds for jurisdiction were set forth. First, we noted that Gulf’s pricing system affected dealers throughout the southwestern United States, many of whom, the evidence tended to show, did distribute gasoline that moved in interstate commerce. Thus the pricing system as a whole constituted a combination that substantially restrained interstate commerce. The alternative ground is of importance to this appeal. We pointed out that Lehrman sold not only gasoline, but also tires, batteries, and accessories, the largest part of which, unlike his gasoline, originated from outside the state of Texas. The termination of Lehrman’s business, we held, had an appreciable effect on the flow of tires, batteries, and accessories from outside Texas. We stated: “The effect was appreciable because, while small relative to total Gulf TBA sales, the gross amount of such sales would be significant over the extended period of time Lehrman might have been able to continue in business.” Id. at 35. The case of Copper Liquor, Inc. v. Adolph Coors Co., 5 Cir. 1975, 506 F.2d 934 presented a similar situation. In Copper Liquor an owner of a retail liquor store sued the defendant brewing company complaining that the refusal of Coors’s local distributor to sell him Coors beer was part of a conspiracy to fix retail prices, and that his inability to secure the beer from other distributors was the consequence of an unlawful scheme of territorial market division. We upheld Sherman Act jurisdiction, pointing to evidence showing that the unavailability of Coors beer at the plaintiff’s retail store diminished customer demand for the plaintiff’s other products that did move in interstate commerce. Citing Lehrman, we observed: “This impact on other products has been held to have a sufficient effect on interstate commerce to bring the case within the federal antitrust laws.” Id. at 949. The activities affected by the restraints alleged in this case have an interstate nexus at least as substantial as those involved in Lehrman and Copper Liquor, and those authorities therefore counsel affirmance of the district court’s ruling on jurisdiction. In Lehrman, jurisdiction was founded on the impact of Gulf’s activities upon the TBA items purchased and sold by a service station operator. That effect could hardly be more substantial than the cessation of the Center’s purchases of $4,000 or $5,000 worth of out-of-state supplies a year and of the clinic’s $12,000 worth of yearly business with out-of-state patients. The interstate nexus in Copper Liquor was even less substantial, for the plaintiff in that case did not contend, as the Center does here, that the challenged practices threatened to shut down his business, and with it his purchases of products in interstate commerce. We conclude, from all the evidence adduced at the jurisdictional hearing before the district court, that the court ruled correctly. We recognize that there must be a limit on the reach of Sherman Act jurisdiction. This case, however, is within that limit. Ill THE MEMBERS OF THE OB-GYN STAFF The district court granted summary judgment in favor of Drs. Mohammad, Curry, Crane, Knight, Griner, and Messer largely on the strength of the Noerr-Pennington doctrine. According to that doctrine, articulated in a line of Supreme Court decisions that began with Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, efforts to influence the government to take anticompetitive action cannot be made the basis of antitrust liability. Noerr itself concerned efforts to achieve anticompetitive ends by securing legislative action. Succeeding court decisions established that antitrust immunity extends to attempts to influence executive and adjudicative governmental bodies as well. The Court has held that petitioning activity is protected “regardless of intent or purpose.” United Mine Workers v. Pennington, 1965, 381 U.S. 657, 670, 85 S.Ct. 1585, 14 L.Ed.2d 626. The petitioning activity, however, must be genuine. Protection does not extend to purported petitioning that is in fact “a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor . . . .” Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 1961, 365 U.S. at 144, 81 S.Ct. 523, 533. Although the Court’s Noerr opinion suggested that petitioning activity is exempt because the Sherman Act was simply not designed to reach such conduct, it is now clear that the doctrine is rooted in the first amendment’s guarantee of the right to petition. See California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642; see generally Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the NoerrPennington Doctrine, 45 U.Chi.L.Rev. 80 (1977). The trial court held the following conduct to be of the type protected by the Noerr-Pennington defense: (1) The OB-GYN Committee’s letter to Dr. Palmer and the BOME; (2) the Committee’s letter to Dr. Thompson, the head of the residency program at the Jacksonville hospital; (3) the Committee’s communications to the Capitol Medical Society regarding the Center’s abortion clinic; and (4) the discussions among the members of the OB-GYN staffs of Tallahassee Memorial and the Jacksonville hospital regarding their members’ medical practice. Since these communications, in the district judge’s opinion, make up the core of the Center’s case against the physicians, he ruled that the fate of the action turned on whether the Center could bring it within the “sham” exception adumbrated in the Supreme Court’s Noerr opinion. Finding that the plaintiff had insufficient evidence that the defendants’ petitioning activities were sham, the court granted the defendants’ motions for summary judgment. The foundation of the trial court’s ruling was its determination that the defendants’ communications were protected petitioning activity. We hold, however, that the communications, with the exceptions of the physicians’ letter of complaint to the BOME and their post-complaint activities in support of their position in this lawsuit, are as a matter of law unprotected by the NoerrPennington doctrine. In addition, a triable issue of fact remains as to whether the OB-GYNs’ letter of complaint to Dr. Palmer was but a sham effort to influence government action. The district court’s misapplication of the Noerr doctrine necessitates reversal of the judgment. The Committee’s letter of complaint to Dr. Palmer is a form of activity that is protected by the Noerr-Pennington doctrine absent proof of sham. The Board of Medical Examiners is a creature of state law. Section 458.1201 of the Florida Statutes authorizes the Board to discipline licensed physicians found guilty of any of the violations defined by chapter 458. The defendant doctors wrote Dr. Palmer requesting him to investigate possible violations of the Medical Practice Act. Whether the doctors’ petition is immune from antitrust attack turns on the factual determination whether it was genuinely intended to influence Dr. Palmer to take official action in his capacity as Executive Director of the BOME. It is the jury’s task to resolve this issue. We agree with the district court, however, that the Center cannot base a right to recovery on the actions of Dr. Palmer and the other members of the Capitol Medical Society in adopting a resolution to provide moral and financial support to the doctors’ defense of this lawsuit. The plaintiff Center characterizes the medical society’s resolution of support as the “consummation” of the alleged conspiracy. In California Motor Transport Co. v. Trucking Unlimited, 1972, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642, the Supreme Court held that joint efforts of competitors to seek adjudicative action are protected. The first amendment right of competitors to join in petitioning courts and administrative bodies entails the right to band together for purposes of supporting litigation, as the physicians in the Capitol Medical Society have done here. Whether the action of the medical society can be linked to the alleged conspiracy that spawned the Center's original complaint is irrelevant, for petitioning activity according to Pennington “is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.” 381 U.S. at 670, 85 S.Ct. at 1593. The district court did not err in granting summary judgment in favor of the defendants on this issue. There is no genuine issue as to the physicians’ intent in adopting the resolution. It cannot be seriously urged that either the physicians’ defense of this lawsuit or the medical society’s resolution of support is a sham. The district court’s determination that the other communications are protected rests on three statutes that, in its view, make the OB-GYN staffs and the Capitol Medical Society integral parts of the state’s apparatus for regulating the practice of medicine. Section 768.40 of the Florida Statutes immunizes “medical review committees”, such as local societies of health care providers and the medical staffs of licensed hospitals, from liability arising out of their actions taken in the course of evaluating the performance of health care providers. The statutes contemplate committees that concern themselves with the quality and cost of medical services rendered by providers. Section 395.065 authorizes the medical staff of licensed hospitals “to suspend, deny, revoke, or curtail the staff privileges of any staff member for good cause”. The statute enumerates a few nonexclusive grounds constituting “good cause” and immunizes the hospital, staff, and staff members from liability arising out of actions taken in good faith in carrying out the staff’s disciplinary function. Section 458.-1201, the statute setting forth the disciplinary powers of the BOME, authorizes the Board to impose penalties on licensed physicians who have been disciplined by a peer review association or a hospital medical staff, and requires such organizations to report all disciplinary actions to the BOME. § 458.1201(l)(p). The court felt that these statutes, in effect, make the OB~ GYN staffs and the Capitol Medical Society public regulatory bodies, and that the discussions at the OB-GYN Committee meetings and the Committee’s letters to the Jacksonville OB-GYN’s and the medical society were therefore protected solicitation of government action.. The defendants’ claim of Noerr protection, in our view, rests ultimately on § 458.1201. Section 768.40 does not recruit medical 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_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SIERRA CLUB, Plaintiff-Appellant-Cross-Appellee, v. SCM CORPORATION, Defendant-Appellee-Cross-Appellant. No. 1410, Dockets 84-7241, 84-7261. United States Court of Appeals, Second Circuit. Argued June 27, 1984. Decided Oct. 29, 1984. Anthony Z. Roisman, Washington, D.C. (Ellen Barry, Trial Lawyers for Public Justice, Washington, D.C., on the brief), for plaintiff-appellant-cross-appellee. Ragna Henrichs, Rochester, N.Y. (Richard M. Cogen, M. Kathryn Sedor, Judy A. Toyer, Nixon Hargrave, Devans & Doyle, Rochester, N.Y., on the brief), for defendant-appellee-cross-appellant. Robert Abrams, Atty. Gen., of the State of New York, Albany, N.Y. (Kathleen Liston Morrison, Asst. Atty. Gen., Albany, N.Y., of counsel), filed a brief for amicus curiae State of New York. Hunton & Williams, Richmond, Ya. (William B. Ellis, William L. Rosbe, K. Dennis Sisk, of counsel), filed a brief for amici curiae Alabama Power Company, et al. Stark Ritchie, James K. Jackson, and Thomas S. Llewellyn, Washington, D.C., filed a brief for amicus curiae American Petroleum Institute. Peter M. Collins and John G. Collins, New York City, filed a brief for amici curiae Norman A. Foster and the Mid-Atlantic Legal Foundation. Before KEARSE, PIERCE, and MAR-KEY, Circuit Judges. Honorable Howard T. Markey, Chief Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation. KEARSE, Circuit Judge: Plaintiff Sierra Club (“Sierra”) appeals from a judgment of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, dismissing for lack of standing its suit against defendant' SCM Corporation (“SCM”) for discharge of excessive pollutants into a tributary of Wolcott Creek in Wolcott, New York, in violation of the Clean Water Act, 33 U.S.C. §§ 1251-1376 (1982) (the “Act”). In an opinion reported at 580 F.Supp. 862 (1984), the court held that Sierra lacked standing to bring suit under § 505 of the Act, 33 U.S.C. § 1365, because Sierra neither alleged that it suffered an appropriate “injury in fact” nor identified any of its members alleged to have suffered such injury. On appeal, Sierra argues principally that, as an organization committed to preventing unpermitted pollution of the aquatic environment, it has been given standing by the Act to bring suit, and that any requirement that it identify a Sierra Club member injured by SCM’s alleged pollution would violate that member’s First Amendment rights to privacy and freedom of association. SCM cross-appeals, urging that if we conclude that plaintiff has standing, we should reverse the district court’s denial of SCM’s motion under 33 U.S.C. § 1365(b)(1)(B) to dismiss on the ground that state proceedings on the same facts have deprived the federal court of jurisdiction. For the reasons below, we affirm the judgment of the district court, and we therefore dismiss the cross-appeal as moot. I. Background According to the complaint, Sierra is a national nonprofit conservation organization with more than 300,000 members dedicated to protecting natural resources, including water. SCM, through its Durkee Famous Foods Division (“Durkee”), owns and operates an onion and potato processing plant in Wolcott, New York. SCM has a National Pollutant Discharge Elimination System/State Pollutant Discharge Elimination System (“NPDES/SPDES”) permit, issued pursuant to § 402 of the Act, 33 U.S.C. § 1342, allowing it to discharge limited amounts of pollutants. The complaint alleged that SCM had repeatedly discharged into a tributary of Wolcott Creek pollutants in volumes exceeding those allowed by its permit. Sierra predicated federal jurisdiction on § 505 of the Act, 33 U.S.C. § 1365, which authorizes a citizen to bring a suit in the district court "on his own behalf” against a person alleged to be in violation of the Act. Sierra set out its interest in the present suit as follows: Members of the Sierra Club reside in New York, in the vicinity of the unnamed tributary of Wolcott Creek into which Defendant’s wastes are discharged, or own property or recreate in, on or near' the unnamed tributary of Wolcott Creek. The quality of the nation’s waters and the waters of the State of New York directly affects the health, economic, recreational, aesthetic, and environmental interest of the Sierra Club’s members. The interests of Sierra Club’s members have been, are being and will be adversely affected by the Defendant SCM Corporation — Durkee Famous Foods Division’s failure to comply with its NPDES/SPDES permit requirements. (Complaint 1Í 7.) Sierra requested declaratory and injunctive relief; the imposition on SCM of civil penalties of $10,000 per day of violation, payable to the government; and an award to Sierra of costs, including fees for attorneys, witnesses, and consultants. SCM moved to dismiss the complaint on the grounds, inter alia, that the court lacked jurisdiction by reason of the conclusion of state proceedings on the same facts. It asserted that prior to the present suit, the New York State Department of Environmental Conservation (“NYDEC”) had commenced an administrative proceeding against SCM resulting in the entry against SCM of a consent order resolving all of the violations alleged in Sierra’s complaint. SCM argued that Sierra’s action was thus precluded by § 505(b)(1)(B) of the Act, 83 U.S.C. § 1365(b)(1)(B), see note 1 supra, which provides that a private civil action may not be maintained if the appropriate state agency has commenced and is diligently prosecuting a civil action in state or federal court to require compliance with the Act. The district court denied SCM’s motion to dismiss, in an opinion reported at 572 F.Supp. 828 (1983), and a number of procedural maneuvers followed. SCM sought certification of the jurisdiction issue for immediate appeal pursuant to 28 U.S.C. § 1292(b). Sierra responded with a motion for partial summary judgment on the issue of SCM’s liability. SCM then served on Sierra a set of “Interrogatories Related to Standing,” requesting identification of each Sierra Club member who resided, owned property, or recreated in the vicinity of the tributary; or whose health or economic, recreation, or aesthetic interests had been adversely affected by its pollution. For each person listed in response, SCM asked the dates and places of the uses made of the tributary and the manner in which SCM’s conduct had affected those uses. Sierra did not answer the interrogatories, but instead sought a protective order and moved for partial summary judgment on the standing issue. Sierra contended that the interrogatories were burdensome and irrelevant and would be moot upon the granting of Sierra’s motions for partial summary judgment. In support of its motion on the standing issue, Sierra submitted the affidavit of its litigation coordinator, stating, inter alia, that more than 2,200 members of Sierra resided within 70 miles of the Durkee plant and that one Sierra member resided in Wolcott. Sierra also submitted copies of its bylaws and other materials describing its activities and the manner in which it decided to undertake litigation. In response, SCM argued that, as Sierra apparently did not intend to come forth with any factual showing of injury to itself or to identify any of its members claimed to suffer injury as a result of the alleged pollution, Sierra’s motion for summary judgment on the issue of standing should be denied, and summary judgment on that issue should be entered in favor of SCM., At oral argument, Sierra argued that it had standing because it was interested in preserving the environment, that harm to Sierra was shown simply by the failure of SCM to comply with the Act; and that Congress had given any person with an interest such as that of Sierra a right to sue any person alleged to have violated the Act. Sierra indicated that it did not intend to identify any of its members who might have been harmed by the alleged violation. After hypothesizing the burdens to any member so identified and subjected to discovery proceedings, counsel for Sierra responded as follows to probing by the court: THE COURT: But there is no question that you haven’t identified the parties who are harmed, nor do you intend to. MR. ROISMAN: Let me be clear about this Your Honor. Our position is that the parties who have been harmed do not have to be identified for any legitimate purposes the defendant has____ (Transcript of hearing, February 23, 1984, at 11.) The district judge rejected Sierra’s arguments and ruled that it lacked standing to bring the suit. Relying on Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the court concluded that since “plaintiff has failed to show that any particular member of its organization has or may be adversely affected in any specific way by defendant’s actions,” Sierra’s assertions of injury in fact were unsupported. 580 F.Supp. at 865. Accordingly, the court denied Sierra’s motions for summary judgment. On the premise that “it would be a poor utilization of judicial resources to allow plaintiff yet another chance to come forward with” factual support, the court dismissed the complaint. Id. Sierra promptly appealed. II. Discussion On appeal, Sierra contends that Congress intended § 505 of the Act to confer standing on an organization such as Sierra to bring suit on the basis of its institutional interest in the preservation of the environment and that that institutional interest constitutes “injury in fact” within the meaning of standing doctrine. It also contends that any requirement that it disclose the names of members directly injured by the alleged pollution would violate the First Amendment rights of those individuals to privacy and freedom of association. SCM has cross-appealed, contending that the district court should have granted its motion to dismiss for lack of jurisdiction in light of the NYDEC consent order. For the reasons below, we conclude that a genera] interest in environmental preservation as shown here by Sierra does not constitute injury in fact or satisfy the standing requirements of the Act. Any contention that Sierra is excused from making a proper showing of injury in fact by reason of the First Amendment rights of its members has been waived by Sierra’s failure to make such an argument in the district court. We thus affirm the dismissal of the complaint for lack of standing. We dismiss SCM’s cross-appeal as moot. A. The Standing Requirement of § 505 The doctrine of standing in the federal courts delimits the persons who are permitted to challenge the legality of an act. The doctrine is informed by constitutional, prudential, and legislative concerns. The constitutional limits on standing are grounded in the requirement of Article III that the federal courts adjudicate only actual cases or controversies, e.g., Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 37-38, 96 S.Ct. 1917, 1923-1924, 48 L.Ed.2d 450 (1976), and such limitations require that the would-be plaintiff show injury in fact, i.e., “that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). Prudential concerns may further limit the class of those permitted to sue, as where “the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated,” id. at 99-100, 99 S.Ct. at 1607-1608, and thus requires that the plaintiff’s injury be “peculiar to himself or to a distinct group of which he is a part, rather than one ‘shared in substantially equal measure by all or a large class of citizens,’ ” id. at 100, 99 S.Ct. at 1608 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). . Finally, Congress may grant a right to sue to those who meet the constitutional limitations on standing but who might otherwise be barred by prudential limitations. Gladstone, Realtors v. Village of Bellwood, 441 U.S. at 100, 99 S.Ct. at 1608. Congress may not, however, “abrogate the Art. Ill minima: A plaintiff must always have suffered ‘a distinct and palpable injury to himself,’ ... that is likely to be redressed if the requested relief is granted.” Id. (quoting Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206, and citing Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. at 38, 96 S.Ct. at 1924); accord Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-73, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982). Sierra contends that it has standing under § 505 of the Act. Evaluation of its contention requires consideration of whether the Act evinces an intention by Congress to confer standing on groups such as Sierra and whether such a bestowal, if inferrable, is consistent with the Article III minima. Section 505(a) of the Act provides, in pertinent part, that “any citizen may commence a civil action on his own behalf” against a person alleged to have violated the Act. Section 505(g) provides that the term “citizen,” as used in § 505(a), “means a person or persons having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(g). The legislative history of this provision, discussed in greater detail below, reveals that Congress intended these provisions to confer standing in accordance with the principles set out in the then-recent Supreme Court decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (“Morton”). In Morton, Sierra sought declaratory and injunctive relief against the proposed construction of recreational facilities in a quasi-wilderness park area. It brought its suit against the United States Secretary of the Interior under § 10 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (1982), which provided that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The injury alleged by Sierra was that the development of the recreational facilities “would destroy or otherwise adversely affect the scenery, natural and historic objects and wildlife of the park and would impair the enjoyment of the park for future generations.” Morton, 405 U.S. at 734, 92 S.Ct. at 1365. The Court had no doubt that this type of harm — i.e., injury to aesthetic and environmental well being, as contrasted with injury to economic interests — could amount to “injury in fact” sufficient to satisfy § 10 of the APA. 405 U.S. at 734, 92 S.Ct. at 1365. It concluded, however, that Sierra had not shown injury in fact because it had failed to allege that it or any of its members used the park or would be affected in any of their activities or pastimes by the proposed development. The Court stated that “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id. at 734-35, 92 S.Ct. at 1365-66. The Morton Court recognized that an organization whose members were injured could sue on their behalf; but it ruled that an organization whose members were not injured but merely interested could not: [A] mere “interest in a problem,” no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization “adversely affected” or “aggrieved” within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation’s natural heritage from man’s depredations. But if a “special interest” in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide “special interest” organization, however small or short-lived. And if any group with a bona fide “special interest” could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so. The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. Id. at 739-40, 92 S.Ct. at 1368-69 (footnotes omitted). Shortly after the Supreme Court decided Morton, Congress passed the Clean Water Act. The standing provision of § 505 was fashioned by a Conference Committee, and the report of the Committee stated “the understanding of the conferees that the conference substitute relating to the definition of the term ‘citizen’ reflects the decision of the U.S. Supreme Court in the case of Sierra Club v. Morton.” S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 146, reprinted in 1972 U.S.Code Cong. & Ad.News 3776, 3823, and in 1 Senate Comm. on Public Works, 93d Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, at 281, 329 (1973) [hereinafter cited as “Legislative History”]. The floor debate in the House regarding the Conference Report elaborated as follows: The House bill — H.R. 11896 — severely restricted the citizen suit provision in its definition of the term “citizen.” This is noted on page 134 of the House committee’s report ... as follows: Subsection (g) defines the term “citizen” to mean (1) a citizen of the geographic area having a direct interest which is or may be affected and (2) any group of persons which has been actively engaged in the administrative process and has thereby shown a special interest in the geographic area in controversy. But the conferees, quite properly, abandoned this restrictive language in favor of language defining a citizen as “a person or persons having an interest which is or may be adversely affected.” This language is based on section 10 of the Administrative Procedure Act, 5 U.S.C. 702, and the interpretation given to that section by the Supreme Court in Sierra Club v. Morton____ The case was decided in April 1972, 3 weeks after H.R. 11896 passed the House in March 1972 .... In Sierra Club, the Supreme Court held that under the APA “the party seeking review” must himself be “among the injured” by the action or inaction complained of. Most importantly, the Court held that noneconomic injury to an environmental interest is sufficient to meet the APA test____ The conferees followed the Court’s opinion. A citizen suit may be brought under the conference agreement by those persons or groups which are among those whose environmental — that is, esthetic, conservational, ... — interest is or may be injured by a violation of the act or a failure to perform a duty under the act which is the basis of the suit. 1 Legislative History, supra, at 249-50 (remarks of Rep. Dingell). The legislative history thus leads to the conclusion that § 505(g)’s definition of “citizen” as a “person or persons having an interest which is or may be adversely affected,” means those who can claim injury in fact within the meaning of Morton. Sierra urges us to reach the contrary conclusion on the grounds, inter alia, that, in adopting § 505, Congress rejected the earlier House proposal that was more restrictive, and that a statement by Senator Muskie, chairman of the Senate Subcommittee on Air and Water Pollution, suggested that a person need only have an interest in the matter in litigation in order to bring suit. We have considered all of the arguments made by Sierra and find none of them persuasive. The fact that the Conference rejected the House version, which would have permitted suits only by citizens of the geographic area who were directly affected or by groups that had been involved in administrative proceedings with respect to the challenged activity, did not mean that the Conference abandoned all restrictions. The Conference report and the floor statement set forth above plainly demonstrate that Congress was adopting the constraints set forth in Morton. Sierra’s contention that Senators Muskie and Bayh “summarized the essence of Section 505 as it was agreed to in conference” (Sierra brief on appeal at 30) is likewise flawed. In support, Sierra quotes to us the following colloquy: Mr. BAYH____ Would an interest in a clean environment which would be invaded by a violation of the [Act] or a permit thereunder — be an “interest” for purposes of this section? Mr. MUSKIE. That is the intent of the conference ... (Id.; ellipses in brief). Senator Muskie’s oral response did not end there, however. He stated as follows: That is the intent of the conference, as I am sure the Senator from Indiana well knows. The conference report states: “It is the understanding of the conferees that the conference substitute relating to the definition of the term “citizen” reflects the decision of the U.S. Supreme Court in the case of Sierra Club v. Morton (No. 70-34, April 19, 1972).” In the Sierra Club case, the Supreme Court was asked to interpret section 10 of the Administrative Procedures [sic] Act — 5 U.S.C., section 702 — which contains wording similar to that of section 505(g) of the conference bill. The Supreme Court emphasized that “the interest alleged to have been injured may reflect aesthetic conservational and recreational as well as economic values.” The Court also said: “Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the legal process.” Thus it is clear that under the language agreed to by the conference, a noneconomic interest in the environment, in clean water, is a sufficient base for a citizen suit under section 505. Further, every citizen of the United States has a legitimate and established interest in the use and quality of the navigable waters of the United States. Thus, I would presume that a citizen of the United States, regardless of residence, would have an interest as defined in this bill regardless of the location of the waterway and regardless of the issue involved. 1 Legislative History, supra, at 221 (emphasis added). Taken in context, we regard Senator Muskie’s remarks as endorsing the view that Congress was incorporating into § 505 Morton’s view of standing, i.e., that although the interest might be noneconomic, the plaintiff had to show that his own interest Was injured. Further, Senator Muskie made this view unmistakably clear in a written statement as follows: In Sierra Club, the Supreme Court held that under the A.P.A. the party seeking review must itself be among those injured by the action or inaction complained of____ Thus under the language agreed to by the Conference a citizen suit may be brought only by those persons or groups which are among those whose interest (whether environmental or economic) is or may be injured by the violation of the Act which is the basis of the suit. 1 Legislative History, supra, at 161, 179 (written remarks of Senator Muskie to Senate upon presentation of Conference Report; emphasis added). If there were a conflict between the remarks of a single legislator and the statement in the legislative committee’s formal report on enactment of the provision, we would regard the formal report as controlling. See Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct. 1705, 1722, 60 L.Ed.2d 208 (1979). Here we regard both the Conference report and the views of Senator Muskie as consistently demonstrating that standing under § 505 was intended to be limited to those who can show that their interest, whether environmental or economic, is or may be injured by the alleged violation of the Act. This interpretation of § 505 is supported by the ruling of the Supreme Court in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). There, in construing § 505, the Court stated that it is clear that the citizen-suit provisions apply only to persons who can claim some sort of injury ____ “Citizen” is defined in the citizen-suit section of the [Act] as “a person or persons having an interest which is or may be adversely affected.” § 505(g), 33 U.S.C. § 1365(g). It is clear from the Senate Conference Report that this phrase was intended by Congress to allow suits by all persons possessing standing under this Court’s decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See S.Conf.Rep. No. 92-1236, p. 146 (1972). Id. at 16-17, 101 S.Ct. at 2624-2625. Accordingly, we conclude that Sierra could establish standing under § 505 only by showing actual injury within the meaning of Morton, by, for example, providing a concrete indication that Sierra or one or more of its members used the Wolcott Creek tributary or would be affected by its pollution. Sierra has, however, refused to come forward with any such showing, asserting only that it has members residing within a 70-mile radius of the tributary and one member living in Wolcott, and preferring to rest its standing claim on its contention that an injury to its interests is established by any violation of the Act. Here, as in Morton, “[t]he Club apparently regardfs] any allegations of individualized injury as superfluous, on the theory that this was a ‘public action involving questions as to the use of natural resources, and the Club’s longstanding concern with and expertise in such matters were sufficient to give it standing as a ‘representative of the public.’ ” 405 U.S. at 736, 92 S.Ct. at 1367 (footnote omitted). The Supreme Court squarely rejected this basis for standing, and we are constrained to do the same. B. The First Amendment Claim Sierra argues in this Court that it should be excused from having to identify any of its members whose interests have been or may be injured by the alleged violations on the grounds that such disclosure would pose an unreasonable burden by subjecting the members to depositions and court appearances and would thereby offend the members’ First Amendment rights to privacy and freedom of association. This contention need not detain us long, since Sierra did not raise it before the district court. Neither Sierra’s motion for a protective order permitting it to delay answering or objecting to the interrogatories served on it by SCM nor its arguments to the district court on the motions for summary judgment made any suggestion that Sierra was asserting a constitutional privilege. Sierra argued only questions of burden and relevance. The First Amendment contentions have thus been waived. See, e.g., United States v. Di Stefano, 555 F.2d 1094, 1100 n. 5 (2d Cir.1977); United States v. Rollins, 522 F.2d 160, 165 (2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d 324 (1976). C. Appellate Relief Finally, Sierra appears to urge that if we agree with the district judge's view that it has not shown standing, we should give Sierra an opportunity to provide additional information about its members in order to meet the injury in fact requirements. We decline to grant Sierra this relief. Sierra never indicated to the district judge that it would provide such information if the judge ruled that that was the only condition on which Sierra would be allowed to pursue this litigation. Indeed, on explicit questioning by the court during the oral argument of the summary judgment motions, Sierra’s counsel confirmed the court’s understanding that Sierra would refuse to provide such information. Nor did Sierra alter its stance after the court ordered the entry of summary judgment against it, by seeking a modification of the order to provide that Sierra could disclose the required information and thus pursue the suit. Instead, a week after the .order was entered, Sierra filed this appeal. We have little doubt that had Sierra requested such a modification of the order the district court would have granted it. Such an order, however, would not have been appealable, and we regard Sierra’s strategy of bypassing its opportunities to obtain relief in the district court and requesting such relief on appeal as an attempt to circumvent the final-judgment rule. We decline to reward such an attempt. Conclusion The judgment of the district court dismissing the complaint is affirmed. The cross-appeal is dismissed as moot. . Section 505 of the Act, 33 U.S.C. § 1365, provides in part as follows: § 1365. Citizen Suits (a) Authorization; jurisdiction Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf— (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent per-, mitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. (b) Notice No action may be commenced Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. DOGGETT v. UNITED STATES No. 90-857. Argued October 9, 1991 Reargued February 24, 1992 Decided June 24, 1992 Souxer, J., delivered the opinion of the Court, in which White, Black-mun, Stevens, and Kennedy, JJ., joined. O’Connor, J., filed a dissenting opinion, post, p. 658. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 659. Wm. J. Sheppard reargued the cause for petitioner. With him on the briefs was Elizabeth L. White. Deputy Solicitor General Bryson reargued the cause for the United States. Assistant Attorney General Mueller argued the cause for the United States on the original argument. With them on the briefs were Solicitor General Starr, Ronald J. Mann, and Patty Merkamp Stemler. Justice Souter delivered the opinion of the Court. In this case we consider whether the delay of 8V2 years between petitioner’s indictment and arrest violated his Sixth Amendment right to a speedy trial. We hold that it did. I On February 22, 1980, petitioner Marc Doggett was indicted for conspiring with several others to import and distribute cocaine. See 84 Stat. 1265, 1291, as amended, 21 U. S. C. §§846, 963. Douglas Driver, the Drug Enforcement Administration’s (DEA’s) principal agent investigating the conspiracy, told the United States Marshal’s Service that the DEA would oversee the apprehension of Doggett and his confederates. On March 18, 1980, two police officers set out under Driver’s orders to arrest Doggett at his parents’ house in Raleigh, North Carolina, only to find that he was not there. His mother told the officers that he had left for Colombia four days earlier. To catch Doggett on his return to the United States, Driver sent word of his outstanding arrest warrant to all United States Customs stations and to a number of law enforcement organizations. He also placed Doggett’s name in the Treasury Enforcement Communication System (TECS), a computer network that helps Customs agents screen people entering the country, and in the National Crime Information Center computer system, which serves similar ends. The TECS entry expired that September, however, and Doggett’s name vanished from the system. In September 1981, Driver found out that Doggett was under arrest on drug charges in Panama and, thinking that a formal extradition request would be futile, simply asked Panama to “expel” Doggett to the United States. Although the Panamanian authorities promised to comply when their own proceedings had run their course, they freed Doggett the following July and let him go to Colombia, where he stayed with an aunt for several months. On September 25, 1982, he passed unhindered through Customs in New York City and settled down in Virginia. Since his return to the United States, he has married, earned a college degree, found a steady job as a computer operations manager, lived openly under his own name, and stayed within the law. Doggett’s travels abroad had not wholly escaped the Government’s notice, however. In 1982, the American Embassy in Panama told the State Department of his departure to Colombia, but that information, for whatever reason, eluded the DEA, and Agent Driver assumed for several years that his quarry was still serving time in a Panamanian prison. Driver never asked DEA officials in Panama to check into Doggett’s status, and only after his own fortuitous assignment to that country in 1985 did he discover Doggett’s departure for Colombia. Driver then simply assumed Doggett had settled there, and he made no effort to find out for sure or to track Doggett down, either abroad or in the United States. Thus Doggett remained lost to the American criminal justice system until September 1988, when the Marshal’s Service ran a simple credit check on several thousand people subject to outstanding arrest warrants and, within minutes, found out where Doggett lived and worked. On September 5,1988, nearly 6 years after his return to the United States and 8V2 years after his indictment, Doggett was arrested. He naturally moved to dismiss the indictment, arguing that the Government’s failure to prosecute him earlier violated his Sixth Amendment right to a speedy trial. The Federal Magistrate hearing his motion applied the criteria for assessing speedy trial claims set out in Barker v. Wingo, 407 U. S. 514 (1972): “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id., at 530 (footnote omitted). The Magistrate found that the delay between Doggett’s indictment and arrest was long enough to be “presumptively prejudicial,” Magistrate’s Report, reprinted at App. to Pet. for Cert. 27-28, that the delay “clearly [was] attributable to the negligence of the government,” id., at 39, and that Doggett could not be faulted for any delay in asserting his right to a speedy trial, there being no evidence that he had known of the charges against him until his arrest, id., at 42-44. The Magistrate also found, however, that Doggett had made no affirmative showing that the delay had impaired his ability to mount a successful defense or had otherwise prejudiced him. In his recommendation to the District Court, the Magistrate contended that this failure to demonstrate particular prejudice sufficed to defeat Doggett’s speedy trial claim. The District Court took the recommendation and denied Doggett’s motion. Doggett then entered a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), expressly reserving the right to appeal his ensuing conviction on the speedy trial claim. A split panel of the Court of Appeals affirmed. 906 F. 2d 573 (CA11 1990). Following Circuit precedent, see Ringstaff v. Howard, 885 F. 2d 1542 (CA11 1989) (en banc), the court ruled that Doggett could prevail only by proving “actual prejudice” or by establishing that “the first three Barker factors weighted] heavily in his favor.” 906 F. 2d, at 582. The majority agreed with the Magistrate that Doggett had not shown actual prejudice, and, attributing the Government’s delay to “negligence” rather than “bad faith,” id., at 578-579, it concluded that Barker’s first three factors did not weigh so heavily against the Government as to make proof of specific prejudice unnecessary. Judge Clark dissented, arguing, among other things, that the majority had placed undue emphasis on Doggett’s inability to prove actual prejudice. We granted Doggett’s petition for certiorari, 498 U. S. 1119 (1991), and now reverse. II The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial_” On its face, the Speedy Trial Clause is written with such breadth that, taken literally, it would forbid the government to delay the trial of an “accused” for any reason at all. Our cases, however, have qualified the literal sweep of the provision by specifically recognizing the relevance of four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result. See Barker, supra, at 530. The first of these is actually a double enquiry. Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, 407 U. S., at 530-531, since, by definition, he cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case, with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. See id., at 533-534. This latter enquiry is significant to the speedy trial analysis because, as we discuss below, the presumption that pretrial delay has prejudiced the accused intensifies over time. In this case, the extraordinary 8V2-year lag between Doggett’s indictment and arrest clearly suffices to trigger the speedy trial enquiry; its further significance within that enquiry will be dealt with later. As for Barker’s second criterion, the Government claims to have sought Doggett with diligence. The findings of the courts below are to the contrary, however, and we review trial court determinations of negligence with considerable deference. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 402 (1990); McAllister v. United States, 348 U. S. 19, 20-22 (1954); 9 C. Wright & A. Miller, Federal Practice and Procedure §2590 (1971). The Government gives us nothing to gainsay the findings that have come up to us, and we see nothing fatal to them in the record. For six years, the Government’s investigators made no serious effort to test their progressively more questionable assumption that Doggett was living abroad, and, had they done so, they could have found him within minutes. While the Government’s lethargy may have reflected no more than Doggett’s relative unimportance in the world of drug trafficking, it was still findable negligence, and the finding stands. The Government goes against the record again in suggesting that Doggett knew of his indictment years before he was arrested. Were this true, Barker’s third factor, concerning invocation of the right to a speedy trial, would be weighed heavily against him. But here again, the Government is trying to revisit the facts. At the hearing on Doggett’s speedy trial motion, it introduced no evidence challenging the testimony of Doggett’s wife, who said that she did not know of the charges until his arrest, and of his mother, who claimed not to have told him or anyone else that the police had come looking for him. From this the Magistrate implicitly concluded, Magistrate’s Report, reprinted at App. to Pet. for Cert. 42-44, and the Court of Appeals expressly reaffirmed, 906 F. 2d, at 579-580, that Doggett had won the evidentiary battle on this point. Not only that, but.in the factual basis supporting Doggett’s guilty plea, the Government explicitly conceded that it had “no information that Doggett was aware of the indictment before he left the United States in March 1980, or prior to his arrest. His mother testified at the suppression hearing that she never told him, and Barnes and Riddle [Doggett’s confederates] state they did not have contact with him after their arrest [in 1980].” 2 Record, Exh. 63, p. 2. While one of the Government’s lawyers later expressed amazement that “that particular stipulation is in the factual basis,” Tr. 13 (Mar. 31, 1989), he could not make it go away, and the trial and appellate courts were entitled to accept the defense’s unrebutted and largely substantiated claim of Doggett’s ignorance. Thus, Doggett is not to be taxed for invoking his speedy trial right only after his arrest. HH h-l The Government is left, then, with its principal contention: that Doggett fails to make out a suecessM speedy trial claim because he has not shown precisely how he was prejudiced by the delay between his indictment and trial. A We have observed in prior cases that unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including "oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence. Barker, 407 U. S., at 532; see also Smith v. Hooey, 393 U. S. 374, 377-379 (1969); United States v. Ewell, 383 U. S. 116, 120 (1966). Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” 407 U. S., at 532. Doggett claims this kind of prejudice, and there is probably no other kind that he can claim, since he was subjected neither to pretrial detention nor, he has successfully contended, to awareness of unresolved' charges against him. The Government answers Doggett’s claim by citing language in three cases, United States v. Marion, 404 U. S. 307, 320-323 (1971), United States v. MacDonald, 456 U. S. 1, 8 (1982), and United States v. Loud Hawk, 474 U. S. 302, 312 (1986), for the proposition that the Speedy Trial Clause does not significantly protect a criminal defendant’s interest in fair adjudication. In so arguing, the Government asks us, in effect, to read part of Barker right out of the law, and that we will not do. In context, the cited passages support nothing beyond the principle, which we have independently based on textual and historical grounds, see Marion, supra, at 313-320, that the Sixth Amendment right of the accused to a speedy trial has no application beyond the confines of a formal criminal prosecution. Once triggered by arrest, indictment, or other official accusation, however, the speedy trial enquiry must weigh the effect of delay on the accused’s defense just as it has to weigh any other form of prejudice that Barker recognized. See Moore v. Arizona, 414 U. S. 25, 26-27, and n. 2 (1973); Barker, supra, at 532; Smith, supra, at 377-379; Ewell, supra, at 120. As an alternative to limiting Barker, the Government claims Doggett has failed to make any affirmative showing that the delay weakened his ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence. Though Doggett did indeed come up short in this respect, the Government’s argument takes it only so far: consideration of prejudice is not limited to the specifically demonstrable, and, as it concedes, Brief for United States 28, n. 21; Tr. of Oral Arg. 28-34 (Feb. 24, 1992), affirmative proof of particularized prejudice is not essential to every speedy trial claim. See Moore, supra, at 26; Barker, supra, at 533. Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony “can rarely be shown.” 407 U. S., at 532. And though time can tilt the case against either side, see id., at 521; Loud Hawk, supra, at 315, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, it is part of the mix of relevant facts, and its importance increases with the length of delay. B This brings us to an enquiry into the role that presumptive prejudice should play in the disposition of Doggett’s speedy trial claim. We begin with hypothetical and somewhat easier cases and work our way to this one. Our speedy trial standards recognize that pretrial delay is often both inevitable and wholly justifiable. The government may need time to collect witnesses against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down. We attach great weight to such considerations when balancing them against the costs of going forward with a trial whose probative accuracy the passage of time has begun by degrees to throw into question. See Loud Hawk, supra, at 315-317. Thus, in this case, if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense. The Government concedes, on the other hand, that Dog-gett would prevail if he could show that the Government had intentionally held back in its prosecution of him to gain some impermissible advantage at trial. See Brief for United States 28, n. 21; Tr. of Oral Arg. 28-34 (Feb. 24,1992). That we cannot doubt. Barker stressed that official bad faith in causing delay will be weighed heavily against the government, 407 U. S., at 531, and a bad-faith delay the length of this negligent one would, present an overwhelming case for dismissal. Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the mid-die ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him. It was on this point that the Court of Appeals erred, and on the. facts before us, it was reversible error. Barker made it clear that “different weights [are to be] assigned to different reasons” for delay. Ibid. Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protraetedness, cf. Arizona v. Youngblood, 488 U. S. 51 (1988), and its consequent threat to the fairness of the accused’s trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the .government to gamble with the interests of criminal suspects assigned a low prosecutorial priority. The Government, indeed, can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it. To be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice. But even so, the Government’s egregious persistence in failing to prosecute Doggett is clearly sufficient. The lag between Doggett’s indictment and arrest was 8V2 years, and he would have faced trial 6 years earlier than he did but for the Government’s inexcusable oversights. The portion of the delay attributable to the Government’s negligence far exceeds the threshold needed to state a speedy trial claim; indeed, we have called shorter delays “extraordinary.” See Barker, supra, at 533. When the Government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, see n. 1, supra, and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, e. g., 407 U. S., at 534-536, nor persuasively rebutted, the defendant is entitled to relief. IV We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. So ordered. Depending on the nature of the charges, the lower courts have generally found postaccusation delay "presumptively prejudicial” at least as it approaches one year. See 2 W. LaFave & J. Israel, Criminal Procedure § 18.2, p. 405 (1984); Joseph, Speedy Trial Rights in Application, 48 Ford. L. Rev. 611, 623, n. 71 (1980) (citing cases). We note that, as the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry. Cf. Uviller, Barker v. Wingo: Speedy Trial Gets a Fast Shuffle, 72 Colum. L. Rev. 1376, 1384-1385 (1972). Thus, we reject the Government's argument that the effect of delay on adjudicative accuracy is exclusively a matter for consideration under the Due Process Clause. We leave intact our earlier observation, see United States v. MacDonald, 456 U. S. 1, 7 (1982), that a defendant may invoke due process to challenge delay both before and after official accusation. Citing United States v. Broce, 488 U. S. 563, 569 (1989), the Government . argues that, by pleading guilty, Doggett waived any right to claim that the delay would have prejudiced him had he gone to trial. Brief for United States 30. Yet Doggett did not sign a guilty plea simpliciter, but a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), thereby securing the Government’s explicit consent to his reservation of “the right to appeal the adverse Court ruling on his Motion to Dismiss for violation of Constitutional Speedy Trial provisions based upon post-indictment delay.” Plea Agreement, 2 Record, Exh. 66, p. 1. One cannot reasonably construe this agreement to bar Doggett from pursuing as effective an appeal as he could have raised had he not pleaded guilty. While the Government ably counters Doggett’s efforts to demonstrate particularized trial prejudice, it has not, and probably could not have, affirmatively proved that the delay left his ability to defend himself unimpaired. Cf. Uviller, 72 Colum. L. Rev., at 1394-1395. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_r_state	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Robert COLE, Appellant, v. Robert PARRATT, Appellee. No. 82-1399. United States Court of Appeals, Eighth Circuit. Submitted Sept. 7, 1982. Decided Sept. 13, 1982. Robert Cole, pro se. Paul L. Douglas, Atty. Gen., Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., for appellee. Before ROSS and McMILLIAN, Circuit Judges, and DAVIES, Senior District Judge. The Honorable Ronald N. Davies, United States Senior District Judge for the District of North Dakota, sitting by designation. PER CURIAM. Robert Cole appeals from the denial of his petition for a writ of habeas corpus. We affirm. In 1974, Cole was convicted of robbery in a Nebraska state trial court. At that time, he was also adjudged an habitual criminal on the basis of two prior convictions in 1956 and 1962; this resulted in an enhanced sentence. The conviction and sentence were affirmed on direct appeal. State v. Cole, 192 Neb. 466, 222 N.W.2d 560 (1974). Cole subsequently sought post-conviction relief in state court, alleging, inter alia, that because the 1956 conviction used in the habitual criminal proceeding was constitutionally defective, his adjudication as an habitual criminal was invalid. No objection to the use of the prior conviction had been raised at the habitual criminal proceeding. The Nebraska Supreme Court denied relief, concluding that Cole’s failure to challenge the validity of the 1956 conviction of the habitual criminal hearing waived the issue and precluded him from raising it collaterally in a post-conviction proceeding. State v. Cole, 207 Neb. 318, 298 N.W.2d 776, 778 (1980). In June 1981, Cole initiated the present federal habeas corpus action, again asserting that the use of the allegedly unconstitutional 1956 conviction rendered his adjudication as an habitual criminal invalid. The federal magistrate to whom the case was referred concluded that Cole, by failing to object to the use of the challenged conviction, had waived the alleged constitutional defect. Because Cole had not demonstrated that his failure to object was justified by “cause” and had resulted in “actual prejudice,” Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the magistrate recommended that the petition be dis- missed. The district court adopted the magistrate’s report and entered an order dismissing the action. This appeal followed. We agree that Cole’s failure to contest the use of the 1956 conviction at the state habitual criminal hearing, as required, precludes federal habeas review of his constitutional claim. Absent a showing of cause for noncompliance with a state’s contemporaneous-objection rule and a demonstration of actual prejudice resulting from the alleged constitutional deprivation, the failure of trial counsel to raise a constitutional issue in state court will bar the defendant from raising the issue in a federal habeas corpus action. Wainwright v. Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; see Graham v. Mabry, 645 F.2d 603, 605-06 (8th Cir. 1981); Parton v. Wyrick, 614 F.2d 154, 157 (8th Cir.), cert. denied, 449 U.S. 846, 101 S.Ct. 131, 66 L.Ed.2d 56 (1980). Cole has not advanced a specific reason for his attorney’s failure to contest the use of the 1956 conviction. Counsel on this appeal speculates that because relevant records of the 1956 conviction are unavailable, proof of Cole’s constitutional claim at the habitual criminal hearing was not possible. This impossibility, counsel argues, constitutes adequate “cause” for the failure to raise the constitutional issue at the habitual criminal proceeding. We cannot agree. While the unavailability of these records would undoubtedly have compounded the difficulty in reviewing Cole’s constitutional claim, there is nothing to indicate this difficulty would have actually precluded effective consideration of the claim by the state court. A finding of “cause” in these circumstances would undermine the reasoning of Sykes. See 433 U.S. at 90, 97 S.Ct. at 2508. In sum, we agree with the district court that Cole has shown no cause of his noncompliance with state procedures during the habitual criminal proceeding. Accordingly, the order dismissing his petition for a writ of habeas corpus is affirmed. . Cole contends the guilty plea upon which his 1956 conviction was founded was not shown by the record to have been voluntarily and intelligently made. . The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska. . Cole also contends the unavailability of the records of his 1956 conviction constitutes an “unconscionable breakdown” in state proceedings which obviates the need to demonstrate cause. This argument is based on Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978), which involved a habeas petitioner’s attempt to assert a fourth amendment claim that had not been raised at his state criminal trial. The Second Circuit concluded that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded federal habeas review of the issue. It suggested, however, that where the state provides the process by which a defendant can litigate a fourth amendment claim, “but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, [federal habeas relief] may still be warranted.” 568 F.2d at 840. Even assuming we were to apply this reasoning in the context of this case, Cole’s argument is without merit. Decisions applying Gates have found “unconscionable breakdowns” in state processes in circumstances where a defendant was actually denied the opportunity to present a constitutional claim to the state court. See Boyd v. Mintz, 631 F.2d 247, 250 (3d Cir. 1980); Cruz v. Alexander, 477 F.Supp. 516 (S.D.N.Y.1979), appeal dismissed, 622 F.2d 573 (2d Cir. 1980). In contrast, while the unavailability of records in connection with the 1956 conviction would have compounded the difficulty in reviewing Cole’s constitutional claim, it did not actually deprive him of the opportunity to present that claim in state court. . Because Cole has not satisfied the “cause” requirement by Sykes, it is unnecessary to determine whether he was actually prejudiced by use of the 1956 conviction. See Graham v. Mabry, 645 F.2d 603, 608 n.3 (8th Cir. 1981). Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Thomas Marshall MOORE, Appellant, v. UNITED STATES of America, Appellee. No. 7862. United States Court of Appeals Tenth Circuit. Dec. 11, 1964. James A. McCaifrey, Oklahoma City, OkL, for appellant. John Quinn, U. S. Atty. (John A. Babington, Asst. U. S. Atty., with him on the brief), for appellee. Before LEWIS, BREITENSTEIN and HILL, Circuit Judges. PER CURIAM. Petitioner is presently confined in the New Mexico State Penitentiary. By a document filed in the United States District Court for the District of New Mexico and designated as an application for a writ of habeas corpus for state prisoners he alleges the fact of such confinement and also that he did, on July 20, 1954, plead guilty to a violation of 18 U.S.C. § 2312 in the District of New Mexico but was surrendered, allegedly unlawfully, to state custody. The application was denied without a hearing. The judgment is affirmed. If petitioner seeks relief against state custody he must direct his petition against those state officials holding him in restraint. If he seeks declaratory relief against the potentiality of future restraint by federal authority the Great Writ may not be used for such purpose. Osborne v. Taylor, Warden, 10 Cir., 328 F.2d 131, cert. denied, 377 U.S. 1002, 84 S.Ct. 1936, 12 L.Ed.2d 1051; Gailes v. Yeager, Warden, 3 Cir., 324 F.2d 630, cert, denied, 368 U.S. 847, 82 S.Ct. 77, 7 L.Ed.2d 45. 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:

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