Split (2)

train · 553k rows

task stringclasses 260 values	output stringlengths 2 5	instruction stringlengths 576 44k
songer_opinstat	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. UNITED STATES of America ex rel. Melvin Lee SMITH, Petitioner-Appellee, v. Charles J. ROWE and William Klusak, Respondents-Appellants. No. 79-2107. United States Court of Appeals, Seventh Circuit. Argued Feb. 13, 1980. Decided March 21, 1980. Carolyn B. Notkoff, Asst. Atty. Gen., Chicago, 111., for respondents-appellants. Ralph Ruebner, Deputy Appellate Defender of Office State Appellate Defender, Andrew Berman and Michael Mulder (of counsel) Chicago, 111., for petitioner-appellee. Before FAIRCHILD, Chief Judge, and SWYGERT and CUMMINGS, Circuit Judges. PER CURIAM. The primary issue is whether a prosecutor’s comments about a defendant’s failure to inform law enforcement authorities of his alibi defense violated his constitutional privilege against self-incrimination and his right to due process. Additional issues are: (1) whether the trial court was correct in finding that the prosecutor’s summation to the jury referred to the defendant’s pretrial failure to bring forth his alibi defense and (2) whether the harmless error doctrine neutralizes the constitutional impairment if it existed. Petitioner-appellee Melvin Lee Smith requested the district court, under 28 U.S.C. § 2254, to issue a writ of habeas corpus, alleging that his state court conviction for robbery was void on constitutional grounds. The district court vacated the judgment of conviction, but it withheld the issuance of the writ for a period of 120 days so as to afford the State of Illinois an opportunity to initiate a new trial proceeding. This appeal by the respondents, Charles J. Rowe, Director, Illinois Department of Correetions, and William Klusak, Sheriff, Kane County, Illinois, followed. Petitioner was indicted in June 1974 by a Kane County grand jury for the armed robbery on March 26, 1974 of Claudia Watson, the night auditor of the Hilton Hotel in Aurora, Illinois. He was found guilty by a jury and was sentenced to a term of four years imprisonment. At the trial, defense witness Betty Walls, who was living with petitioner at the time of the robbery, testified that she and the petitioner were home that evening playing cards. During cross-examination the witness testified that a police officer came to her residence the evening before petitioner’s trial on September 30, 1974, but she refused to talk to the officer. The petitioner was also present, according to her testimony. Petitioner, testifying in his own behalf, stated that he and Walls were home on the night of the robbery. He also testified that when the police officer came to interview Walls on the eve of the trial, he told the officer that he could talk to Walls only in the presence of petitioner’s lawyer. During the State’s closing and rebuttal arguments, the prosecutor made comments which are the basis of the instant habeas petition (see n. 1 of the district court’s memorandum opinion which is appended). Judge Will wrote a thorough opinion explicating his determinations. After considering the respective contentions of the parties, we are satisfied with the judge’s reasoning and the result he reached. We therefore adopt his opinion as our own (see Appendix) with these additional comments. Although Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), concerned a situation different from that presented here, it has an important bearing on the primary question before us. In Doyle the prosecution sought to impeach the defendant’s testimony by questioning the defendant about his failure to reveal exculpatory conduct on his part to narcotics agents at the time of his arrest and after receiving Miranda warnings. Here there were no Miranda warnings given to petitioner when the police attempted to interview Walls on the eve of the trial. At that time, both she and the petitioner remained silent except for the latter’s statement that Walls would afford an interview if petitioner’s lawyer was present. It seems clear that the Supreme Court in Doyle left open the very question presented in the instant case. Doyle, supra, 426 U.S. at 616 n. 6, 96 S.Ct. at 2244 n. 6. The State argues that given this posture, Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), should control and that the prosecutor’s remarks do not constitute error. We are convinced, however, that Raffel is factually and legally distinguishable from the present case. In Raffel there were two trials; here there was only one trial. Defendant Raffel made his decision to remain silent in a trial setting. In his second trial, he denied making the exact statement offered at the first trial. Here Melvin Lee Smith exercised his constitutional right to remain silent prior to his one and only trial. Moreover, we believe absent an alibi statute that passes constitutional muster, Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), there was no obligation on Smith or Walls to inform the police or the prosecution of the alibi. In such circumstances, it was impermissible for the prosecutor to argue that their pretrial silence discredited their story told on the witness stand. Due process proscribes such prosecutorial conduct. What we have just stated serves as a predicate for the constitutional error asserted by petitioner: the comments of the prosecutor on the failure of the petitioner to furnish his alibi defense to the police at any time before his trial. We see no legal distinction between the comments by the prosecutor to the jury and any attempt he might have undertaken to impeach petitioner or Walls on cross-examination. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Doyle v. Ohio, supra, 426 U.S. at 633-36, 96 S.Ct. 2240, 2251-53, 49 L.Ed.2d 91 (1975) (Stevens, J., dissenting). In respect to the other issues, we are convinced that Judge Will was correct in his determinations. The order granting the writ is affirmed. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION United States of America ex rel. Melvin Lee Smith, Petitioner, v. Charles J. Rowe, Director, Illinois Department of Corrections, and William Klusak, Sheriff, Kane County, Illinois. Respondents. No. 78 C 2853 MEMORANDUM OPINION WILL, District Judge. Petitioner Melvin Lee Smith brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that the state court prosecutor committed constitutional error in his closing argument to the jury and that such error was not harmless beyond a reasonable doubt. Specifically, petitioner contends that the prosecutor commented upon petitioner’s failure to come forward prior to trial with the alibi to which petitioner testified at trial, and that such comment constituted impermissible impeachment by use of post-arrest silence in contravention of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). This case comes before the Court on respondent’s motion to dismiss and petitioner’s motion for summary judgment. While .this is a close case insofar as the existence of constitutional error is concerned, for the reasons hereinafter stated we grant petitioner’s motion for summary judgment and grant the writ. BACKGROUND Petitioner was tried in the Circuit Court of Kane County on September 30 and October 1,1974 on the charge of having committed an armed robbery at the Hilton Inn in North Aurora, Illinois on March 26, 1974. At trial, petitioner advanced an alibi defense and both he and his girl friend, Ms. Betty Walls, testified that they had been home together on the night of the robbery. After the close of the evidence, the prosecutor made the following statements in his initial closing argument: The defense is alibi. Now, this is a very interesting alibi. I want you all to think what you would do in a situation like this, what you would do, and if you feel that this alibi was handled the way you would handle it I will be surprised. ****** In fact, yesterday when we attempted to talk to her [Ms. Walls] about an alibi she wouldn’t talk to us, she wouldn’t talk to the police officer. Melvin Smith, the same guy that wasn’t at the hearing, that hid in the back, maybe, told her not to. If you had what this is supposed to be, an ironclad alibi, you were home with your spouse, or your friend, or your buddy, or girl friend or boy friend and you knew it, one week from the day that the thing happened, had happened on a late Monday, early Tuesday, and you knew on Monday or Sunday next that he was supposed to, wouldn’t you run to the police and say: ‘Hey, look, he was with me, he didn’t do it.’ Which one of you would not? They didn’t. They had no obligation to. By the way, they have no obligation to tell us anything, but wouldn’t you, if you were innocent and if you had a loved one in trouble, run in and tell the police? You’re right, you would. Trial Transcript (T.Tr.), at 248-250. Following defense counsel’s closing argument, the prosecutor made the following comments in his rebuttal argument with respect to the alibi defense: And even when the police were out there to ask her about it she wouldn’t talk — or he wouldn’t let her talk about it. That’s a curious thing. Why, why wouldn’t anybody talk about the alibi until we get to Court? T.Tr., at 264. The jury found petitioner guilty of armed robbery. Subsequent to petitioner’s conviction, petitioner retained different counsel for the purpose of filing post-trial motions. Post-trial motions were heard by the trial judge on January 30, 1975. During the hearing, petitioner’s new counsel raised for the first time his objection to the prosecutor's closing arguments insofar as the comments upon petitioner’s prior silence were concerned. Hearing Transcript (H.Tr.), at 18-26, 66-68, 71-72. The trial judge concluded, however, that the prosecutor’s closing argument had not violated the petitioner’s right to remain silent. H.Tr., at 86-87. Petitioner was sentenced to four years and one day imprisonment. Petitioner appealed his conviction to the Appellate Court of Illinois, Second Judicial District. People v. Smith, 52 Ill.App.3d 583, 10 Ill.Dec. 303, 367 N.E.2d 756 (2d Dist. 1977). One of the issues raised on appeal was whether petitioner’s constitutional privilege against self-incrimination had been violated by the prosecutor’s closing arguments to the jury. Rejecting petitioner’s reliance upon Doyle v. Ohio, supra, the appellate court concluded that [a]n unbiased reading of the entire record clearly reveals that the prosecutor was referring to the defendant’s undisputed ordering of the witness to refuse to talk to the prosecutor’s representative and not of any failure or refusal of the defendant himself to speak. 52 Ill.App.3d at 591, 10 Ill.Dec. at 309, 367 N.E.2d at 762. The Illinois Supreme Court denied leave to appeal, and the United States Supreme Court denied certiorari. Smith v. Illinois, 436 U.S. 961, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978). This habeas corpus petition followed. VIOLATION OF PETITIONER’S DUE PROCESS RIGHTS Petitioner contends that the prosecutor’s comments in closing argument impermissibly referred to petitioner’s pretrial silence and thereby violated both his fifth amendment right to remain silent and his due process rights. In the context of this case, petitioner’s argument raises two important questions: (1) were the prosecutor’s comments directed towards petitioner’s failure to come forward with the alibi defense, and (2), if so, does the prosecutorial comment on the petitioner’s failure to come forward constitute constitutional error? Insofar as the first of these questions is concerned, a fair reading of the trial transcript and the closing arguments by both the prosecutor and petitioner's trial counsel indicates that the primary focus of the prosecutor’s comments insofar as petitioner’s alibi defense was concerned was toward Ms. Walls’ failure to give a similar story to the police at any point prior to trial. In so arguing, the prosecutor clearly sought to impeach Ms. Walls’ veracity as a witness in support of petitioner’s alibi defense. Notwithstanding the prosecutor’s primary focus upon impeaching Ms. Walls’ testimony, it is clear that on several separate occasions during his closing arguments, one of which was of significant duration, the prosecutor’s language literally embraced both petitioner and Ms. Walls. The Illinois Appellate Court concluded with respect to these comments that “the prosecutor was referring to the defendant’s undisputed ordering of the witness to refuse to talk to the prosecutor’s representative.” People v. Smith, supra, 52 111. App.3d at 591,10 Ill.Dec. at 309, 367 N.E.2d at 762. Presumably, this conclusion was drawn from the prosecutor’s cross-examination of Ms. Walls, T.Tr., at 224-227, and petitioner’s trial testimony that when the police officer had come to interview Ms. Walls on the day before the trial began, petitioner had instructed the officer that Ms. Walls would only talk to the officer in the presence of petitioner’s attorney. T.Tr., at 236. While the appellate court’s interpretation of the prosecutor’s comments has some support in the record, we do not find the appellate court’s analysis persuasive. 28 U.S.C. § 2254(d)(8). In his comments preceding his repeated references to “they”, T.Tr., at 250, the prosecutor had discussed broadly Ms. Walls’ failure to come forward at any time prior to the trial, as well as discussing Ms. Walls’ failure to come forward on the day prior to her actual testimony. In addition, he also referred to “if you were innocent”, T.Tr., at 250, and “Why, why wouldn’t anybody talk about the alibi until we get to Court?” T.Tr., at 264 (underscoring supplied). Viewing the prosecutor’s comments as a whole, they are clearly susceptible of being interpreted as referring to both petitioner and Ms. Walls’ failures to come forward any any time before trial. Notwithstanding our conclusion that the prosecutor’s literal language also embraced the defendant’s pretrial silence, the question remains whether these comments are, for purposes of constitutional analysis, to be deemed a reference to the defendant’s prior silence. Neither the Supreme Court nor the Seventh Circuit has yet specifically set forth a test to determine when ambiguous prosecutorial comments will constitute an invasion of the defendant’s right to remain silent after his arrest. However, at least one circuit has ruled with respect to Doyle -type situations that a comment is deemed to be such a reference if either (1) it was the prosecutor’s manifest intention to refer to the defendant’s silence, or (2) the remark was of such a character that the jury would “naturally and necessarily” take it to be a comment on the defendant’s silence. United States v. Edwards, 576 F.2d 1152, 1154 (5th Cir. 1978). This standard is identical to that followed by the' Seventh Circuit in cases where the issue is whether indirect prosecutorial statements constitute impermissible comment upon the defendant’s failure to testify at trial, United States v. Muscarella, 585 F.2d 242, 249 (7th Cir. 1978); United States v. Buege, 578 F.2d 187, 188 (7th Cir. 1978); United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968), and we see no reason why the same standard should not be equally applicable here. Evaluating the challenged comments by reference to this standard, we cannot conclude that they were “manifestly intended” to refer to petitioner’s silence. There are indications that the prosecutor’s choice of words was not accidental and might well have been intentional, particularly in his repeated use of the word “they.” T.Tr., at 250. However, in light of the dominant focus of the closing arguments on the impeachment of Ms. Walls and of the fact that the prosecutor did not cross-examine petitioner with respect to his failure to come forward at any time prior to trial, we cannot conclude that he “manifestly intended” to include petitioner in his remarks. Notwithstanding this conclusion, we find the prosecutor’s remarks to be of such a character that the jury would “naturally and necessarily” take them to be a comment on the defendant’s silence. Repetition of the word “they”, in contrast to the immediately prior comments which were focused only upon Ms. Walls’ silence, is juxtaposed so as to call the jury’s attention to the petitioner’s as well as Ms. Walls’ silence. Moreover, while the reference to “anybody” in the rebuttal argument is of lesser importance and of itself would be inadequate to justify a finding of improper comment, see United States v. Aldridge, 484 F.2d 655, 660 (7th Cir. 1973) (single ambiguous comment held not to warrant reversal), the implicit reference of this word to both Ms. Walls and petitioner and the arguable reference of this clause to their joint silence up until trial reinforced the comment upon petitioner’s silence contained in the preceding comments. This is a close case. Moreover, we recognize that defense counsel’s failure to object at the time of the prosecutor’s closing argument is a factor to be weighed in deciding whether or not the prosecutor’s remarks are to be considered as improper comments. See United States v. Hansen, 583 F.2d 325, 331 (7th Cir. 1978); United States v. Reicin, 497 F.2d 563, 573 (7th Cir. 1974); United States v. Lyon, supra, 397 F.2d at 509. Nonetheless, we find that these closing arguments would naturally and necessarily be taken by the jury as a comment on the defendant’s failure to come forward priorato trial with notice of his alibi defense. Having concluded that the prosecutor’s comments were directed towards the petitioner’s failure to come forward at any time prior to trial with his alibi defense, the question remains whether these comments constitute constitutional error. Petitioner relies primarily on Doyle v. Ohio, supra; and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) in support of his contention that these comments were constitutional error. However, a careful reading of these decisions shows that, while important to analyzing whether or not the prosecutor’s comments in this case constituted constitutional error, neither controls this case. In Hale, the Supreme Court, exercising its supervisory powers over the lower federal courts, held on non-constitutional grounds that a defendant’s silence at the time of arrest and during police interrogation lacked significant probative value and that “any reference to silence under such circumstances carried with it an intolerably prejudicial impact.” 422 U.S. at 180, 95 S.Ct. at 2138. In Doyle, the Supreme Court extended the Hale rationale, and held that use of a defendant’s silence at the time of arrest and after having received Miranda warnings to impeach the defendant’s exculpatory story given for the first time at trial violated due process. In so holding, the Court adduced two reasons in support of its constitutional rule. First, as set forth in Hale, the ambiguity of post-arrest, post-Miranda warning silence was so great as to deprive the silence of significant probative value. 426 U.S. at 617, 96 S.Ct. at 2244. Second, since the Miranda warnings themselves implicitly assured the defendant that his silence would not be used against him, it would be fundamentally unfair to later allow use of the silence to impeach an exculpatory explanation. 426 U.S. at 618, 96 S.Ct. at 2245. While Doyle established a constitutional rule based on the due process clause against impeachment use of a defendant’s silence while under arrest and after having received Miranda warnings, the Court was careful to specify that it did not consider other constitutional claims raised by the petitioners. 426 U.S. at 616 n.6, 96 S.Ct. at 2244 n.6. The Court specifically noted that it did not reach petitioners’ claim, essentially identical to that raised here by petitioner Smith, that constitutional error had been committed by the prosecutor’s cross-examination and comment in closing argument directed towards the petitioners’ failure to have told their exculpatory story at any time prior to trial. Id. Moreover, the Court noted that “different considerations” would be involved in such a case. Id. To this Court’s knowledge, no federal court has endeavored since Doyle to analyze the “different considerations” which are at play when the prosecutorial comment is directed towards the defendant’s general failure to come forward and give notice of his alibi prior to trial. Some guidance as to the constitutional considerations at play in this situation may be gleaned, however, from the dissenting opinion in Doyle. Justices Stevens, Blackmun, and Rehnquist, dissenting in Doyle, would have reached the constitutional issue reserved by the majority and at stake in this case and would have resolved this issue adversely to the petitioners. Relying primarily on the continued existence of Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), in which the Court had held that a defendant’s failure to take the stand at his first trial could be used to impeach the defendant on cross-examination when the defendant took the stand in his second trial, these justices would have concluded that, until Raffel is expressly overruled, a state court is free to “regard the defendant’s decision to take the stand as a waiver of his objection to the use of his . failure to offer his version of the events prior to trial.” 426 U.S. at 633, 96 S.Ct. at 2251, 2252 (Stevens, J., dissenting). Notwithstanding this conclusion, the dissenting justices expressed serious doubts as to the probative value of a defendant’s decision not to divulge his defenses prior to trial. Id., at 631-632, 96 S.Ct. at 2250-2251. While the dissenting opinion in Doyle points toward a finding of no constitutional error in this case, we conclude that the “different considerations” present in this case do not prevent the error from attaining constitutional proportions. In fact, considerations precisely parallel to the two rationales articulated by the Doyle majority are present in this case. First, as a general matter, a defendant’s failure to come forward prior to trial with an alibi defense is certainly no less “insolubly ambiguous” than is the defendant’s silence at the time of arrest. Where the defendant has been given Miranda warnings and been thereby apprised of the fact that his statements could be used against him, where the defendant retains his fifth amendment privilege against self-incrimination, and where the defendant has counsel who might well have encouraged him to say nothing to the prosecution with respect to his possible defenses, the defendant’s failure in the usual case to come forward with an alibi defense is certainly not significantly inconsistent with his testimony as to the alibi defense at trial. Moreover, while the record in this case is sparse since the prosecutor never cross-examined petitioner with respect to his failure to give the alibi defense before the trial, the record clearly demonstrates that petitioner’s trial counsel had deliberately withheld giving the prosecutor notice of the petitioner’s alibi defense. Under such circumstances, petitioner’s pretrial failure to come forward with his alibi defense is of extremely questionable probative value, while its potential for prejudice can hardly be doubted. Second, even assuming the continuing viability of the Raffel decision, the prosecutorial comments directed towards the petitioner’s failure to come forward prior to trial with his alibi violated fundamental fairness. While this case is distinguishable from Doyle in that the silence addressed by the comment was not solely that during the post-Miranda warning, post-arrest period, the fact that Miranda warnings are given and that a criminal defendant retains his fifth amendment right against self-incrimination is of continuing relevance to the fact of a defendant’s silence throughout the pretrial period. Moreover, in this specific case, the record clearly demonstrates that petitioner’s trial counsel deliberately withheld giving notice of the alibi defense and the identity of the alibi witness until the day of trial. In making this deliberate choice, the petitioner’s counsel relied on his conclusion that under Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the Illinois Alibi Defense statute, Ill.Rev.Stat. ch. 38, § 114-14, was unconstitutional in its failure to provide reciprocal discovery by the defendant once the defendant had provided notice of his alibi. Under such circumstances, we believe it was fundamentally unfair and a denial of due process for petitioner’s silence to be used to attack his alibi offered at trial. See Minor v. Black, 527 F.2d 1, 3-4 (6th Cir. 1975); United States v. Brinson, 411 F.2d 1057, 1060 (6th Cir. 1969). Cf. United States v. Franklin, 586 F.2d 560, 570 (5th Cir. 1978) (questions directed towards revealing a defendant’s general pre-trial silence are improper); United States v. Meneses-Davila, 580 F.2d 888, 891 (5th Cir. 1978) (without consideration of “different considerations,” held prosecutorial inquiry as to defendant’s general pretrial silence as to exculpatory story given at trial to be a “blatant” violation of Doyle). Accordingly, we hold the prosecutor’s comments in closing argument which called the jury’s attention to petitioner’s pretrial silence with respect to his alibi to be constitutional error. HARMLESS ERROR Notwithstanding our conclusion that the prosecutor’s comments were constitutional error, respondent contends that such error was harmless beyond a reasonable doubt as required by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In light of the evidence presented at trial, we cannot agree. The evidence presented at petitioner’s state court trial, while clearly sufficient to sustain the jury verdict of guilty, see People v. Smith, supra, 52 Ill.App.3d at 588, 10 Ill.Dec. at 308, 367 N.E.2d at 760, was not exceedingly strong. The prosecution’s only substantive witness was the robbery victim who testified that she had viewed the defendant during the course of the robbery for two or three minutes. While the lighting was good, the victim testified that the robber had been wearing a wide brimmed hat which cast shadows over a portion of his face. Moreover, the victim originally described the robber as 5'8" tall, while in fact petitioner is 6'2". Five days after the robbery, the victim picked the petitioner’s picture out from a set of 8 or 9 photographs. She again identified petitioner at a line-up of 9 or 10 men some four months later, but at this line-up all of the men were seated thereby preventing a test of the victim’s recollection of the robber’s height. The only other prosecution witness testified to having witnessed the line-up at which the victim identified the petitioner. In opposition to this testimony, both Ms. Walls and petitioner testified that they had been home together on the night of the robbery. In determining whether the error was harmless beyond a reasonable doubt, the question is whether there is a reasonable possibility that the error might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). In a trial like petitioner’s, the credibility of the witnesses and of the defendant are of crucial significance. While Ms. Walls’ testimony in support of petitioner’s alibi was substantially impeached at trial, we cannot conclude that the petitioner’s alibi defense was transparently frivolous. Under all of the circumstances, where the jury would “naturally and necessarily” have taken the prosecutor’s closing arguments as an effort to impeach petitioner’s credibility and alibi defense by virtue of his pretrial silence, we cannot conclude that the error was harmless beyond a reasonable doubt. See United States ex rel. Allen v. Rowe, 591 F.2d 391, 393 (7th Cir. 1979); Chapman v. United States, 547 F.2d 1240, 1249 (5th Cir. 1977). Petitioner is entitled to a new trial. Accordingly, petitioner’s motion for summary judgment is granted, and the judgment of conviction is vacated. However, the writ of habeas corpus shall not issue for a period of 120 days in order to afford the State of Illinois the opportunity to initiate new trial proceedings. If petitioner is not brought to trial within 120 days from the date of this order, the writ shall issue. An appropriate order will enter. Dated: Aug. 21, 1979. The date of the judgment of conviction was January 30, 1975. The Illinois Appellate Court, Second Division, affirmed the conviction on September 16, 1977, People v. Smith, 52 Ill. App.3d 583, 10 Ill.Dec. 303, 367 N.E.2d 756 (1977), and the Illinois Supreme Court, on January 26, 1978, denied a petition for leave to appeal to that court. The Supreme Court denied certiorari on May 1, 1978, Smith v. Illinois, 436 U.S. 961, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978). Thereafter this habeas proceeding was initiated. The petitioner was freed on bail during the pendency of the state court appeals and is presently free on bail pending the disposition of this proceeding. . Since these comments can only be interpreted within the context of the full closing arguments as to the alibi defense issue, these portions of the arguments are set forth. Initial closing argument for the prosecution: The defense is alibi. Now, this is a very interesting alibi. I want you all to think what you would do in a situation like this, what you would do, and if you feel that this alibi was handled the way you would handle it I will be surprised. Okay. They say that here is Melvin Smith living with Betty, that they have been living together for awhile, that he stays home on a regular basis, that he’s not working and she’s not working, so they must be getting along pretty good if you’re going to stay in because it’s.pretty tough to stay in the house day in and out. They have enough feeling for one another. They live together, play cards together, stay together even though they’re not married. Okay. That when she finds out that he is arrested for this offense, the day she found out she claims it was Sunday, he says it was Monday, she’s a little mixed up on her days, but when she found out she didn’t turn to the police and say: ‘For Godsake, he couldn’t have done it, he was with me.’ No, this alibi couldn’t come out right then and there. In fact, yesterday when we attempted to talk to her about an alibi she wouldn’t talk to us, she wouldn’t talk to the police officer. Melvin Smith, the same guy that wasn’t at the hearing, that hid in the back, maybe, told her not to. If you had what this is supposed to be, an ironclad alibi, you were home with your spouse, or your friend, or your buddy, or girl friend or boy friend and you knew it, one week from the day that the thing happened, had happened on a late Monday, early Tuesday, and you knew on Monday or Sunday next that he was supposed to, wouldn’t you run to the police and say: ‘Hey, look, he was with me, he didn’t do it.’ Which one of you would not? They didn’t. They had no obligation to. By the way, they have no obligation to tell us anything, but wouldn’t you, if you were innocent and if you had a loved one in trouble, run in and tell the police? You’re right, you would. T.Tr., at 248-250. Closing argument for the defense: So, coupled with that we have got what Mr. Puklin refers to as the alibi defense, and legally that’s what it’s called is an alibi defense. Now, alibi has a bad connotation, or at least to me it sounds bad, alibi, but that’s what it’s called. And sure, when I was picking you people on the jury, when Mr. Puklin was picking you I asked you questions now about what if we don’t put on any evidence, what if Melvin doesn’t testify, and that’s because that’s a very difficult choice for me to make. I put this girl on the stand, she’s never been in Court before, she’s not an experienced witness by any means. I don’t know what Mr. Puklin is going to be able to do to her, what a skillful cross examiner is going to get her to say. I submit to you that had Mr. Puklin enough time or the desire to do so he could have had her confused about her name. But we do have her here saying: ‘I was living with Melvin, we were staying together, he was home that night.’ We have Melvin saying he was home that night. Mr. Puklin says: ‘Okay, why didn’t you tell the police? You would have all told the police.’ I have no doubt in my mind that every one of you would have gone to the police and said: ‘Hey, you get him out, he didn’t do it, he was with me.’ Well, just for a minute pretend that you’re in your early twenty’s, and you’re black, and you’re living in Aurora and you have a boy friend charged with armed robbery and you know he was with you. Are you going to the police and say: ‘Hey, that’s my boy friend, he was with me, you guys are wrong?’ Of course you’re not. It’s unfortunate, but if you’re black and you’re that age and you’re in Aurora the police are on the other side, they’re not Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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, Appellee, v. James Walter BENNETT, Appellant. Nos. 9728, 9729. United States Court of Appeals Fourth Circuit. Argued July 2, 1965. Decided July 25, 1966. F. Dean Rainey, Jr., Greenville, S. C. (court-assigned counsel), for appellant. Ernest J. Howard, Asst. U. S. Atty. (John C. Williams, U. S. Atty., on brief), for appellee. Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges. BOREMAN, Circuit Judge: The appellant, James Walter Bennett, was prosecuted under two indictments charging him with separate violations of the White Slave Traffic Act, 18 U.S.C. § 2421 (1964). The first indictment charged Bennett with transporting Deborah Videtto from Spartanburg, South Carolina, to Chattanooga, Tennessee, in June 1963, in violation of the statute. The second indictment charged that Bennett, and a codefendant, Grady-Lee Jolley, violated the statute in transporting Mrs. Videtto and Sherrie Gossett from Spartanburg to Chattanooga in September of 1968. Bennett pleaded not guilty to both indictments. Agreeable to the provisions of Rule 13 of the Federal Rules of Criminal Procedure, the indictments were tried together. The only issue raised by the defendant at trial was the purpose of the interstate transportation. Bennett freely admitted that he had taken the women on the trips charged in the indictments. At the trial Mrs. Videtto testified that it was Bennett’s purpose in transporting her to Chattanooga in June that she should engage in prostitution and he would share in the money received therefrom. Jolley testified that prostitution was also the purpose of Bennett’s interstate transportation of the two women in September. Bennett denied that either trip was so motivated. He testified that the real purpose of his June trip was to visit his wife, or former wife, who was then living in Chattanooga, and that he took Mrs. Videtto along merely for company. With respect to the second trip, he testified that his purpose was to obtain money unlawfully by passing bad checks and using presumably stolen credit cards then in the possession of Jolley and that the two women were taken along to assist in this venture because Bennett thought that a woman could more easily cash checks in a strange place than could a man. Bennett did admit on cross-examination that he had left Spartanburg on each occasion with the intent of having intercourse with his female companion in Chattanooga should she respond to his advances. The jury returned a verdict of guilty on each indictment, and the court sentenced Bennett to a four-year prison term on each, the sentences to run consecutively. The pertinent portion of the White Slave Traffic Act makes it a crime to knowingly transport in interstate commerce “ * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice * * 18 U.S.C. § 2421 (1964). It has long been established that the broad provisions of the statute apply not only to commercialized vice, i. e., prostitution, but also to the interstate transportation of a woman with the intent and purpose of engaging in immoral sexual acts and practices. Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917); Simon v. United States, 145 F.2d 345 (4 Cir. 1944). However, whether the immoral activity is of a commercial or noncommercial nature, the courts, including this court, are in substantial agreement that such activity must be at least one of the purposes motivating the interstate transportation. A mere incidental intent on the part of the transporter to engage in immoral practices during or at the conclusion of the journey is not sufficient to constitute a violation of the statute if the reason or reasons motivating the transportation are unrelated to immoral practices. Bennett contends that the trial court’s charge did not clearly apprise the jury of the unlawful purpose required by the statute; that it in fact misled the jury into thinking that defendant’s admitted intent to have sexual intercourse with the women if he could persuade them was a sufficient basis upon which to return a guilty verdict even if that intent was only incidental to the trip and did not motivate it. Certain portions of the court’s charge, read in isolation, might be considered objectionable, not because of inaccuracies but because they were incomplete with respect to the “purpose” element. These isolated statements were clearly intended to explain certain aspects of the law relative to violation of the statute, such as the application of the statute to noncommercialized vice. But it has long been recognized that it is often difficult if not impossible to formulate each separate portion of the charge so that it will be absolutely complete within itself. Consequently, the charge to the jury is to be considered in its entirety and as a whole in determining its adequacy and correctness. When the charge here is so viewed and considered we reach the conclusion that the jury was not misled and that they fully understood that immoral activities must be found to be a “purpose” of the interstate transportation. Furthermore, although given the opportunity, the defendant interposed no objection to the charge pursuant to the requirements of Rule 30 of the Federal Rules of Criminal Procedure nor did he offer, suggest or request an instruction which would tend to clarify and thus eliminate the uncertainty, now asserted, as to the correctness and sufficiency of the charge. We find no error or defect so plain as to warrant notice by the court, sua sponte, in the absence of objection below.. Affirmed. . Jolley pleaded guilty to the second indictment. . Jolley testified that both girls did prostitute themselves in Chattanooga on the second trip. Mrs. Videtto denied on the stand that she earned her livelihood by such means on either trip. Miss Gossett did not testify. . On the first trip, Bennett and Mrs. Videtto registered as man and wife under fictitious names at a Chattanooga hotel. Bennett followed the same procedure with Miss Gossett on the second trip. However, in each instance the parties denied having had sexual relations with each other. . See Nunnally v. United States, 291 F.2d 205, 208 (5 Cir. 1961); Bush v. United States, 267 F.2d 483, 485 (9 Cir. 1959); Masse v. United States, 210 F.2d 418, 421 (5 Cir.), cert. denied, 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105 (1954); Daigle v. United States, 181 F.2d 311 (1 Cir. 1950); Mellor v. United States. 160 F.2d 757, 764 (8 Cir.), cert. denied, 331 U.S. 848, 67 S.Ct. 1735, 91 L.Ed. 1858 (1947); Long v. United States, 160 F.2d 706, 709 (10 Oir. 1947); Simon v. United States, 145 F.2d 345, 347 (4 Cir. 1944); Van Pelt v. United States, 240 F. 346, 349 (4 Cir. 1917). Some confusion as to the precise nature of the statutory “intent and purpose” has emanated from the Supreme Court’s dictum in Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), that “[a]n intention that the women or girls shall engage in the conduct outlawed by section 2 * * * must he the dominant motive of such interstate movement.” 322 U.S. at 374, 64 S.Ct. at 1040. (Emphasis added.) As is apparent from the cases cited above in this footnote, the courts have not generally followed that test, although such test has on occasion been paid lip service. See DeVault v. United States, 338 F.2d 179, 182 (10 Cir. 1964); United States v. Hon, 306 F.2d 52 (7 Cir. 1962) ; Long v. United States, supra. As pointed out by this court in Dingess v. United States, 4 Cir., 315 F.2d 238, 240 n. 2, petition for cert. dismissed, 373 U.S. 947, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963), the “dominant motive” test seems completely inappropriate in any case involving multiple purposes, some of which are legitimate but one of which is proscribed by § 2421. The Mortensen case is distinguishable since the evidence there disclosed nothing more than an entirely innocent purpose. . See United States v. Hon, supra, note 4, 306 F.2d at 55; Nelms v. United States, 291 F.2d 390, 393 (4 Cir. 1961) (dictum); Mellor v. United States, supra, note 4; Long v. United States, supra, note 4; Yoder v. United States, 80 F.2d 665, 672 (10 Cir. 1935); Van Pelt v. United States, supra, note 4. . See Burwell v. United States, 137 F.2d 155 (4 Cir. 1943). . See Bule 10, section 8, Rules U.S. Court of Appeals, Fourth Circuit, 28 U.S.C.A. p. 255. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_caseorigin	041	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. AMERICAN FOREIGN STEAMSHIP CO. v. MATISE No. 74-966. Argued October 14, 1975 Decided December 16, 1975 Marshall, J., delivered the opinion for a unanimous Court. Francis L. Tetreault argued the cause for petitioner. With him on the brief was John A. Flynn. Eric J. Schmidt argued the cause and submitted a brief for respondent. Mr. Justice Marshall delivered the opinion of the Court. Granville C. Matise, a seaman, brought this suit alleging that upon his discharge from the S. S. American Hawk, petitioner, the ship’s owner, withheld $510 in wages from him. Matise claimed that, pursuant to Rev. Stat. § 4529, as amended, 46 U. S. C. § 596, he was entitled to two days’ pay for every day that payment of the $510 had been delayed. Title 46 TJ. S. C. § 596 provides in relevant part; “The master or owner of any vessel [making foreign voyages] shall pay to every seaman his wages... within twenty-four hours after the cargo has been discharged, or within four days after the seaman has been discharged, whichever first happens . . . . Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court.” The parties to this case differ over the meaning of “sufficient cause” under § 596; they are in conflict, too, over whether the trial court can exercise any discretion in determining the amount of the award under § 596. But we need not address either of these questions today. We hold simply that in this case the District Court correctly concluded that petitioner-shipowner never “refuse [d] or neglect [ed] to make payment” to Matise. This being so, petitioner incurred no liability under § 596. I Granville Matise was hired on January 11, 1969, as a seaman aboard the S. S. American Hawk. Between February 14 and March 19, 1969, there were five occasions on which the ship’s master entered in the ship’s log reports that Matise either was absent from his duty position or, because of intoxication, was unable to fulfill his normal responsibilities. On the first four occasions relatively minor penalties of the loss of several days’ pay were imposed. On March 19, the date of the fifth log entry, the master decided that Matise should be discharged. With the ship docked in Saigon, South Vietnam, the master took Matise before the United States Vice Consul stationed in Saigon. The Vice Consul, whose duty in such situations is to “inquire carefully into the facts and circumstances, and [to] satisfy himself that good and substantial reasons exist for a discharge,” 22 CFR § 82.16, agreed with the master that Matise’s discharge was justified. He granted the discharge application without objection from Matise, and entered into the ship’s log a notation stating that he “agreed to remove [Matise] from the vessel on grounds of misconduct at the Master’s request and for the good of the vessel.” The Vice Consul also advised the master that, because the discharge resulted from repeated instances of misconduct by Matise, petitioner was not obligated to pay for Matise’s repatriation. Petitioner did, of course, have an obligation to pay Matise the wages that he had earned prior to his discharge. See 46 U. S. C. § 696. But payment in a form enabling Matise to secure transportation back to the United States was no easy matter. South Vietnamese law prohibited American seamen from carrying American currency ashore, and required that any ship’s safe containing American currency be sealed while the ship was in port. An airline ticket to the United States, however, could be purchased only with American currency. Thus, Matise could not simply be put ashore with his wages and left there to secure transportation back to the United States for himself. In order to resolve the resulting dilemma, Vietnamese Customs officials gave the ship’s master special permission to break the seal on the ship’s safe and to remove enough money to purchase an airline ticket to the United States. The ticket was purchased and given to Matise along with a wage voucher for $118.45 — a sum which, as indicated on the voucher itself, represented the amount of the wages due him, less the $510 paid for the airline ticket. When Matise arrived back in the United States, he signed off the ship’s articles, executed a mutual release, and, on March 24, 1969, received the $118.45 from petitioner. Almost one year later Matise filed suit against petitioner in the United States District Court for the Northern District of California. He claimed that petitioner had withheld from him $510 in wages, and that petitioner was liable to him for that amount and, as provided in § 596, for two days’ pay for every day that payment had been delayed. The District Court rejected Matise’s claim, finding that he had “consented to and approved the purchase of an airline ticket for his purposes with his money,” and concluding that “[t]he purchase of that ticket under those circumstances constituted the equivalent of payment of monies over to the seaman.” Having found that the purchase of the airline ticket for $510 constituted a partial payment of wages, the District Court concluded that petitioner had not “'refuse [d]. or neglect [ed]” to pay and had therefore incurred no liability under § 596. The Court of Appeals for the Ninth Circuit reversed. 488 F. 2d 469 (1974). It read § 596 as requiring that wage payments be paid directly to the seaman, and held that the $510 paid to the airline without ever having passed through Matise’s hands could not be regarded as a partial payment of wages. Citing this Court’s indication. in Isbrandtsen Co. v. Johnson, 343 U. S. 779 (1952), that only deductions and setoffs for derelictions of duty specifically provided for by Congress could lawfully be deducted from a seaman’s wages, the Court of Appeals concluded that since the statutory scheme does not provide for setoffs for return transportation expenses,, the “withholding” here at issue was improper and was without “sufficient'cause.” under § 596. On remand, the District Court assessed damages in the amount of $510 for the wages “wrongfully withheld” and $29,462 in penalties, representing double wages calculated from March 24, 1969, four days after the discharge, until December 15, 1971, the date of the first District Court judgment in the case. Petitioner’s appeal from this assessment was dismissed by the Court of Appeals as frivolous, and this Court thereupon granted certiorari. 420 U. S. 971 (1975). We reverse. II The threshold question in this case is whether petitioner’s purchase and Matise’s receipt of the airline ticket constituted a partial payment of wages. If it was a partial payment, then there was no refusal or neglect to pay wages and there can be no double-wage liability under § 596. Only if the transaction was not a partial payment are we presented with the question whether the “withholding" of the $510 was without “sufficient cause” under § 596. In Isbrandtsen Co. v. Johnson, supra, on which the Court of Appeals heavily relied, there was no question that what this Court was faced with was a refusal or neglect to make payment. There respondent, a seaman, had stabbed one of his shipmates while at sea. Over respondent’s objection, the shipowner deducted from his wages amounts spent for the medical care and hospitalization of the shipmate. We held that because the deductions were not provided for in the relevant statutes, they should not have been made — even though it might later have been determined that the shipowner had a valid claim for reimbursement against the respondent. The situation before us today is quite different from that in Isbrandtsen. While the deductions in Isbrandt-sen were made over the seaman’s objection, the District Court in this case explicitly found that Matise “consented to and approved the purchase of an airline ticket for his purposes with his money.” Moreover, unlike the seaman in Isbrandtsen, Matise received a benefit from the petitioner’s expenditure that he simply could not have obtained through being paid in cash. Because of South Vietnamese currency regulations, it was only the procedure that was followed that allowed Matise to secure air transportation to the United States. Under such circumstances, it is evident that the shipowner did not refuse or neglect to make payment under § 596 as the shipowner in Isbrandtsen so clearly did; rather, the transaction in question constituted a partial payment of Matise’s wages. The Court of Appeals rejected petitioner’s attempt to treat the giving of the plane ticket to Matise as a payment of wages. It viewed the purchase of the ticket as a payment to the airline, not to Matise, and observed that “the applicable statutes explicitly and unequivocally provide that the wages due are to be paid to the seaman, 46 U. S. C. §§ 596-597.” 488 F. 2d, at 471 (emphasis in original). The Court was evidently relying at this point on the following language in § 596: “The master . . . shall pay to every seaman his wages . . . within four days after the seaman has been discharged . . . .” (Emphasis added.) The Court of Appeals’ conclusion that the “payment” went to the airline and not to Matise does not necessarily follow from the facts of this case. It could as easily be argued that “payment,” albeit in the form of an airline ticket rather than cash, was made to Matise. But even under the Court of Appeals’ characterization of the transaction, we are unwilling to say that the payment was precluded by the general language of § 596. A far more explicit statement would be required to bar such a payment under the peculiar circumstances of this case. The obvious concern of § 596 is that the shipowner not unlawfully withhold wages, and thereby unjustly enrich himself while wrongfully denying the seaman the benefits of his labor. In this case, there was neither unjust enrichment of the shipowner nor a denial of benefits to the seaman. The shipowner made in a timely manner all the expenditures for which it was obligated. And the seaman received full benefit from the $510 by consenting to have it applied in the fashion most useful to him — the purchase of an airline ticket. Respondent advanced an alternative theory during oral argument to support the contention that petitioner neglected to make payment under § 596. Respondent argued that the master’s failure to enter into the ship’s logbook a notation that the $510 had been paid bars viewing the transaction as a partial payment of wages. We find this argument unpersuasive. When crew members become liable for deductions from wages dis-ing a ship’s voyage, there is, it is true, a statutory requirement that “the master shall, during the voyage, enter the various matters in respect to which such deductions are made, with the amounts of the respective deductions as they occur, in the official log book.” 46 U. S. C. § 642. As we have indicated above, however, the airline ticket transaction in this case is not a “deduction from” Matise’s wages, but rather is itself a partial payment of wages. Section 642’s terms do not apply to payments of wages. The shipowner therefore acted properly in doing no more than rendering Matise a complete wage voucher that clearly noted the purchase of the airline ticket. Ill In reversing the decision of the Court of Appeals, we do not retreat from our view that the aim of § 596 is “to protect [seamen] from the harsh consequences of arbitrary and unscrupulous action [s] of their employers.” Collie v. Fergusson, 281 U. S. 52, 55 (1930). In this case, there was no impropriety either in the discharge itself or in the payment of wages to Matise. Nor do we today compromise our holding in Isbrandtsen that “only such deductions and set-offs for derelictions in the performance of . . . duties shall be allowed against. . . wages as are recognized in the statutes.” 343 U. S., at 787. We hold simply that, under the circumstances of this case, the transaction resulting in Matise’s receipt of an airline ticket purchased with money owed to him as wages constituted a payment of wages. There was therefore no refusal or neglect to make payment under § 596. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. While the Third and Ninth Circuits have found that the trial judge has no discretion in determining the amount of the penalty under § 596, Swain v. Isthmian Lines, Inc., 360 F. 2d 81 (CA3 1966); Escobar v. S. S. Washington Trader, 503 F. 2d 271 (CA9 1974), cert. pending sub nom. American Trading Transp. Co. v. Escobar, No. 74-1184, the First, Second, Fourth, and Fifth Circuits have concluded that the length of time to which the penalty applies — and hence its amount — is subject to the discretion of the District Court. Mavromatis v. United Greek Shipowners Corp., 179 F. 2d 310 (CA1 1950); Forster v. Oro Navigation Co., 228 F. 2d 319 (CA2 1955), aff’g 128 F. Supp. 113 (SDNY 1954); Southern Cross S. S. Co. v. Firipis, 285 F. 2d 651 (CA4 1960), cert. denied, 365 U. S. 869 (1961); Caribbean Federation Lines v. Dahl, 315 F. 2d 370 (CA5 1963). See also 46 U. S. C. §682; 7 Foreign Affairs Manual §526.2. Two Coast Guard officers with whom the master had earlier consulted concerning Matise’s misconduct were also present and concurred in the Vice Consul’s advice that there was no obligation of repatriation. South Vietnamese currency regulations were apparently not the only barrier to simply discharging Matise with his full wages in cash in Saigon. The Court of Appeals noted that South Vietnamese law also required the shipowner to guarantee the removal from the country of all persons whom it had transported to South Vietnam. 488 F. 2d 469, 471-472. Apart from the airline ticket expense, several deductions, none of them here at issue, were also reflected on the wage voucher. Such a release is required by 46 U. S. C. § 644. Once such a release is signed, it “shall operate as a mutual discharge and settlement of all demands for wages between the parties thereto, on account of wages, in respect of the past voyage or engagement,” § 644, except that “any court having jurisdiction may upon good cause shown set aside such release and take such action as justice shall require.” § 597. Granville Matise died during the pendency of the suit. Lillian M. Matise, respondent in this vase, was appointed by the State of Maryland to administer his estate. Pursuant to stipulation, the District Court substituted respondent as plaintiff in this action. The District Court also held petitioner liable for interest on these sums, as well as for court costs in both the District Court and Court of Appeals. The District Court assessment was made in conformity with Escobar v. S. S. Washington Trader. See n. 1, supra. Respondent conceded as much at oral argument before this Court. See Tr. of Oral Arg. 27, 31. 46 U. S. C. §§ 659, 663, 701, 707. The Court of Appeals rejected the District Court’s finding that Matise had consented to the purchase of the airline ticket with part of the wages due him, in part because of its conclusion that Matise was "compelled to sign the release and Wage Voucher in order to receive the remainder of his wages that admittedly were due.” 488 F. 2d, at 473. But there is nothing in the record to indicate that Matise's signing the wage voucher and release was the product of any such compulsion. Indeed, no claim is made that Matise registered any dissatisfaction whatsoever with either the form or amount of his wages until some months after signing the release. Nor was he the subject of any fraud or misrepresentation. See n. 14, infra. Accordingly, the District Court’s finding that Matise had consented to and approved the form and amount of his wage payment was not clearly erroneous and should have been respected by the Court of Appeals. To the extent that the respondent in Isbrandtsen Co. v. Johnson, 343 U. S. 779 (1952), was ultimately liable for the expenses surrounding his shipmate’s injury, he too could be said to have benefited from the shipowner’s payment of those expenses. However, unlike the ease before us today, this was a “benefit” that he could have secured for himself had he been paid the wages directly. Any suggestion that on Matise’s discharge petitioner had a repatriation obligation to him independent of the obligation to pay wages is without merit. That this is so follows from respondent’s concession that the discharge was validly based on Matise’s misconduct. A shipowner’s obligation to repatriate a seaman discharged in a foreign port depends on the circumstances of the discharge. For instance, there is a general obligation to repatriate seamen who, through causes other than their own misconduct, have been injured. See Ladzinski v. Sperling S. S. & Trading Corp., 300 F. Supp. 947, 956 (SDNY 1969); Miller v. United States, 51 F. Supp. 924 (SDNY 1943); The Centennial, 10 F. 397 (ED La. 1881); 1 M. Norris, The Law of Seamen §418 (1970). On the other hand, as the Court of Appeals recognized in this case, 488 F. 2d, at 471, there is no obligation to repatriate a seaman like Matise who has been discharged for misconduct. 1 Norris, supra, § 420. See Aguilar v. Standard Oil Co., 318 U. S. 724, 731 (1943). Nothing in Isbrandtsen suggests that when a seaman concedes that his discharge for misconduct is warranted, the shipowner must pay for the seaman’s repatriation and only later claim reimbursement from him. It is true that Isbrandtsen indicated that, because of the importance of repatriation allowances to seamen, amounts not deductible from earned wages may not be deducted from a repatriation allowance that is owing to a seaman. 343 U. S., at 789 n. 12. But in this case, we are presented, not with a deduction from a repatriation allowance that was owed to Matise, but rather, because of the nature of Matise’s discharge, with the absence of any obligation at all on the part of the shipowner toward Matise to repatriate him. The Vice Consul’s advice to the master, see supra, at 153, that petitioner had no obligation — even of a temporary nature — to pay for Matise’s return to the United States was correct. It follows that Matise’s consent to partial payment was not, as the Court of Appeals indicated, 488 F. 2d, at 473, the product of misinformation. The Court of Appeals’ reference to § 597 was apparently to the following language: “Every seaman . . . shall be entitled to receive on demand from the master of the vessel to which he belongs one-half part of the balance of his wages ... at the time when such demand is made at every port where such vessel . . . shall load or deliver cargo before the voyage is ended . . . 46 U. S. C. § 597 (emphasis added). For reasons identical to those presented with regard to § 596, we reject any reading of § 597 that bars the method of payment utilized in this case. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Henry WARD, Defendant-Appellant. No. 26375. United States Court of Appeals, Ninth Circuit. June 28, 1971. Volney V. Brown, Jr. (argued), Beverly Hills, Cal., for defendant-appellant. Eric Nobles, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee. Before CHAMBERS, CARTER and WRIGHT, Circuit Judges. JAMES M. CARTER, Circuit Judge: Ward was convicted for violation of 50 U.S.C. App. § 462, refusal to submit to induction. We reverse. On March 18, 1968, Ward was ordered to report for induction. That same day, the induction was “postponed until further notice”, and Ward was reclassified I-S(C) [student deferment] “until October 1968.” On March 29, 1968, Ward completed and returned Selective Service Form 150, in which he described his conscientious objection to war. The board then classified Ward I-A-0 [eligible for non-combatant military training] on April 17, 1968. Within the 30-day appeal period, Ward visited the local board offices and, in response to his inquiries, a board secretary allegedly informed him that he could not appeal his I-A-0 classification without “new evidence.” In mid-June of 1968, Ward withdrew from his college courses with the intention of enrolling in a “bible school” to become a minister. On August 16, 1968, Ward received a new induction order and, after one postponement, reported on January 9, 1969, but refused induction. The question presented on appeal is whether the local board erred on April 17 by classifying Ward I-A-0 at a time when he was a college student and legally entitled to a I-S(C) deferment. The Government asserts that Ward requested a I-A-0 classification by filing his Form 150 on March 20, and the board merely granted his request on April 17. It is correct that a Form 150 incorporates a request for exemption. It might also be considered “informational”, however, in view of a registrant’s duty to report to the board the occurrence of any fact that might bear upon his classification [32 C.F.R. § 1625.1]. Thus, it is possible that Ward filed the Form 150 to announce the crystallization of his C.O. beliefs as groundwork for establishing “sincerity” for future I-A-0 classification when his I-S(C) deferment expired. Such a conclusion would seem more plausible than that insisted upon by the Government, to wit —a professed C.O. requested immediate reclassification from a I-S(C) deferred status to a I-A-0 draft-eligible status. The Form 150 in use at that time [2-10-66 version] also provided that if a C.O. claim was made, “the local board shall proceed in the prescribed manner to determine [registrant’s] proper classification.” The “prescribed manner” referred to is specifically set forth in 32 C.F.R. § 1623.2, to wit: “Consideration of Classes. Every registrant shall be placed in Class I-A under the provisions of section 1622.-10 of this chapter except that when grounds are established to place a registrant in one or more of the classes listed in the following table, the registrant shall be classified in the lowest class for which he is determined to be eligible, with Class I-A-0 considered the highest class and Class I-C considered the lowest class according to the following table: I-A-O, I-O, I-S * * [emphasis added]. Thus, the local board violated its own regulation by removing Ward’s I-S(C) deferment and substituting the “higher” I-A-0 classification. This court has held that an induction order based upon an erroneous classification is invalid. United States v. Brandt, (9 Cir. 1970) 435 F.2d 324, 327; Franks v. United States, (9 Cir. 1954) 216 F.2d 266, 270; Goetz v. United States, (9 Cir. 1954) 216 F.2d 270, 272. As to prejudice, if Ward had been retained in Class I-S(C) until he withdrew from college in mid-June, his subsequent reclassification to I-A would have given rise to two consecutive 30-day periods in which Ward could request a personal appearance and, if unsuccessful there, request an appeal to the State Board. Even assuming absolute efficiency in the review process, the board could not have validly issued an induction order until after the date of the order here involved. The prejudice resulting from the premature issuance of an induction order is obvious in view of the severe limitations upon reopening a classification and presenting new evidence provided by 32 C.F.R. § 1625.2. See, United States v. Zablen, (9 Cir. 1971) 436 F.2d 1075. Accordingly, Ward’s conviction based upon refusal to submit to this invalid induction order is reversed. The mandate shall issue forthwith. . The Government did not raise the issue of Ward’s apparent failure to exhaust his administrative remedies within the Selective Service System. Therefore, that issue is not before this court on appeal. . The board was under a mandatory (i. e. not discretionary) duty to place and retain Ward in Class I-S until the end of the academic year or until he ceased to satisfactorily pursue his course of study. 50 U.S.C. App. § 456 (i) (2) ; 32 C.F.R. § 1622.15; United States v. Zablen, (9 Cir. 1971) 436 F.2d 1075, 1076. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_const1	104	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Eleuterio BENITEZ-MENDEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 82-7096. United States Court of Appeals, Ninth Circuit. Argued Jan. 3, 1983. Submitted May 4, 1983. Decided June 10, 1983. Rehearing Granted and Opinion Amended Nov. 28, 1984. Richard Evans, Dept, of Justice, Washington, D.C., for respondent. Paul D. Edmondson, Yakima, Wash., for petitioner. Before BROWNING, Chief Judge, FLETCHER and PREGERSON, Circuit Judges. PREGERSON, Circuit Judge: Petitioner Benitez-Mendez seeks review of a decision of an immigration judge, affirmed by the Board of Immigration Appeals, finding petitioner deportable under 8 U.S.C. § 1251(a)(2) for entry without inspection. This court has jurisdiction under 8 U.S.C. § 1105a(a). Petitioner was arrested by Border Patrol officers on April 13, 1981, while he was standing in a hop field near Granger, Washington. He had been working the field with a group of workers who fled when three marked Border Patrol vehicles approached the field. Petitioner did not run but remained standing in the field. A Border Patrol officer approached and questioned petitioner, who told the officer that he had papers in his car which showed his legal alien status. Petitioner was then detained in a Border Patrol vehicle while the officers examined his papers. After the officers determined that the papers did not establish that petitioner was legally in the country, petitioner was arrested and taken to the Border Patrol office. At the office, he told the arresting officer that he was born in Mexico and that he had entered the United States near San Ysidro without an immigration inspection. The arresting officer wrote this information on a Form 1-213 (Record of Deportable Alien). At his deportation hearing on May 21, 1981, petitioner denied the allegations in the Order to Show Cause, denied deport-ability, and unsuccessfully moved to suppress the information contained on the Form 1-213. Petitioner contends that he was unlawfully seized within the meaning of the Fourth Amendment, and that, therefore, the information obtained by the Border Patrol and used at the deportation hearing should have been excluded as the “fruit of an unlawful seizure.” This court’s test to determine whether the factual circumstances of law enforcement activity rise to the level of a seizure under the Fourth Amendment is found in United States v. Anderson, 663 F.2d 934 (9th Cir.1981): “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. at 939 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). When the stop in question rises to the level of a “seizure” under the Fourth Amendment, we have formulated a constitutional standard applicable to detentive questioning of suspected illegal alien workers. ILGWU v. Sureck, 681 F.2d 624, 638 (9th Cir.1982), rev’d on other grounds sub nom. INS v. Delgado, — U.S. —, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). In ILGWU v. Sureck, we held that INS investigators may not seize or detain workers for citizenship status questioning unless the investigators are able to articulate objective facts providing investigators with a reasonable suspicion that each questioned person, so detained, is an alien illegally in this country. 681 F.2d at 638. These two standards are applicable to the seizure of petitioner Benitez-Mendez. From the record, it does not appear that the Border Patrol officer’s initial encounter with petitioner amounted to a seizure under the Anderson test. The officer approached petitioner in an open field and asked him several questions to which he responded voluntarily. There is no evidence of the use of physical force, a display of a weapon, or the threatening presence of several officers. However, following the initial questioning during which petitioner stated that he had immigration documents in his car, the Border Patrol officer took petitioner to the Border Patrol vehicle and put him inside to wait until other officers could check his papers. We find that the placing of petitioner in the Border Patrol vehicle was a seizure under the Anderson test. Border Patrol Agent Minyard testified that he directed a second Border Patrol officer, Agent Stinsley, to keep petitioner in the Border Patrol vehicle until his papers could be examined. Once petitioner was placed inside the vehicle and told to wait, it is clear that he reasonably “would have believed that he was not free to leave.” Anderson, 663 F.2d at 939. Having determined that the detention of petitioner in the vehicle was a seizure, we find that the Border Patrol officer was not able to articulate objective facts providing a reasonable suspicion that Benitez-Mendez was an alien illegally in this country. ILGWU v. Sureck, 681 F.2d at 638. The objective facts known to the officers at the time of petitioner’s detention were that petitioner was a field worker whose co-workers had fled upon sight of a marked Border Patrol detail, that he was an alien, and that he claimed to possess documents showing his legal status. Agent Minyard, who ordered petitioner detained in the vehicle, did so over the radio solely upon the information conveyed by Agent Stinsley that “he had a person there who claimed to be legal status; however, his papers was (sic) in his vehicle.” In sum, the Fourth Amendment standard articulated in ILGWU v. Sureck has not been met in this case. At the time that Agent Minyard ordered Agent Stinsley to seize and detain petitioner, neither officer had sufficient grounds to suspect that petitioner was an alien illegally in this country. We granted rehearing in light of the Supreme Court’s decision in INS v. Lopez-Mendoza, — U.S. —, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), that the exclusionary rule does not apply in civil deportation proceedings. Accordingly, even though we have found that petitioner’s arrest violated the Fourth Amendment, the information obtained as the result of the arrest (petitioner’s statements on Form 1-213) was admissible at his deportation hearing. On the basis of this evidence, we affirm the immigration judge’s order of deportation. To enable petitioner to seek any available alternative forms of relief and to move for a stay of deportation, our mandate shall issue forty-five days from the date of entry of this judgment. We also reinstate the immigration judge’s grant of 30 days voluntary departure time, to commence on the effective date of any order of deportation issued against petitioner. . Because the Supreme Court held that no seizure had occurred in Delgado (Sureck below), it did not review our formulation of the constitutional standard applicable when a seizure has in fact occurred. See 104 S.Ct. at 1764. The facts of the instant case, distinguishable from those in Delgado, establish the INS agents’ conduct did constitute a seizure. In Delgado, "the INS agents’ conduct ... consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory.” Id. Here, in addition to questioning Benitez-Mendez about his immigration status, the Border Patrol officer placed him in a Border Patrol vehicle before the officer had reasonable suspicion, let alone probable cause, to believe that Benitez-Mendez was illegally in the country. Such conduct amounts to a seizure under Anderson and warrants application of the Sureck "articulable facts/reasonable suspicion” test. . Petitioner had not yet violated 8 U.S.C. § 1304(e), requiring an alien to "at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him____" Since petitioner stated that his papers were in his car, parked adjacent to the field, the officers should have afforded him the opportunity to produce the papers. Under the circumstances the papers were constructively in petitioner’s personal possession. It was reasonable for petitioner to leave the papers in his car while he engaged in heavy agricultural labor. Only if the petitioner refused to produce the papers, or was unable to produce the valid papers, would he have committed a ’ misdemeanor under § 1304(e), giving the INS officers probable cause to arrest him. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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. MUTUAL SERVICE CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. COUNTRY LIFE INSURANCE COMPANY, Country Mutual Insurance Company and Country Casualty Insurance Company, Defendants-Appellants. No. 88-1115. United States Court of Appeals, Seventh Circuit. Argued May 31, 1988. Decided Oct. 12, 1988. Joseph P. Della Maria, Jr., Rothschild Barry & Myers, Chicago, Ill., for defendants-appellants. David L. Antognoli, Bernard & Davidson, Granite City, Ill., for plaintiff-appellee. Before BAUER, Chief Judge, and CUMMINGS and CUDAHY, Circuit Judges. CUMMINGS, Circuit Judge. Country Life Insurance Company, Country Mutual Insurance Company, and Country Casualty Insurance Company (“Country Companies”) appeal the district court’s entry of partial summary judgment in favor of plaintiff Mutual Service Casualty Insur-anee Company (“MSI”), which sought declaratory relief concerning its obligations under both a general liability and an umbrella insurance policy it issued to Country Companies. The court below concluded that because MSI’s policies did not cover the intentional torts alleged in the underlying lawsuit, MSI need not defend nor indemnify Country Companies against the class action seeking damages in excess of $20 million. We affirm for the reasons that follow. Joseph Slimack, as well as certain other former agents of Country Companies, filed a two-count complaint on October 21, 1981, in state court, alleging that Country Companies “knowingly” engaged in a “scheme or plan” to deprive them of compensation due under agency contracts as well as firing them or forcing their resignation if they objected to the foregoing conduct. Count I claimed that when various insurance policyholders failed to pay their premiums, Country Companies then withheld the agents’ commissions and applied them to pay the delinquent premiums. Count II further alleged that the insurance accounts procured by the former agents were subsequently transferred to the new agents who replaced them. The claimant agents also asserted that they suffered emotional distress emanating from Country Companies’ actions. The complaint sought unquantified compensatory damages as well as $20 million dollars in punitive damages on each count. MSI insured Country Companies under two policies, a general liability and an umbrella policy. The general liability policy covered property damage and bodily injury, while the umbrella policy insured against loss in excess of the general policy’s limits of coverage. In each policy, the insuring clause restricted liability coverage to loss caused by an “occurrence,” defined as “an accident ... which results in bodily injury or property damage neither expected or intended from the standpoint of the insured.” One month after the filing of the Sli-mack suit, through a letter of F.J. Hagen, its Business Insurance Claims Manager, MSI accepted the defense of Country Companies, but explicitly reserved the right to disclaim its coverage and “to bring a declaratory judgment action sometime in the future to litigate these coverage issues” (Def.App. 115). After reserving its rights, MSI then allowed Country Companies to retain independent legal counsel to defend the action, and MSI paid the litigation costs until 1986. Payment was pursuant to a December 3, 1981, letter of Hagen, stating that MSI was “willing to defend those companies subject to the right to bring a declaratory judgment action at an appropriate time and a right to withdraw from the defense” (Def.App. 117). MSI later brought this declaratory judgment action in federal district court in April 1985. Country Companies responded, and in a memorandum opinion entered on June 19, 1985, Chief Judge Foreman ruled: “Here the Plaintiff [MSI] asks this court to declare that the agents have failed to allege facts in their complaint sufficient to sustain a cause of action for mental anguish or emotional distress, apparently on the contention that absent these two theories of recovery the agents’ complaint would not fall within the insurance policy. It is important to note that the plaintiff is not asking this court to declare that the facts as alleged in the state court complaint do not fall within the confines of the insurance policy. Clearly, this court would have the authority to so declare. Rather, the plaintiff is apparently asking this court to declare that, although the facts alleged fall within the policy, they are insufficient to sustain a cause of action for emotional distress or mental anguish. However, by so declaring, this court would be deciding an ultimate issue in the underlying suit, namely whether the agents’ complaint fails to state a valid claim for relief. This issue must be decided by the state court.” (Def.App. 96). After filing an amended complaint on November 19, 1986, MSI moved for partial summary judgment on March 20, 1987, seeking an order that it had no duty to defend the Slimack action. On December 14, 1987, the district court held that the underlying litigation did not allege the requisite “occurrence” because it predicated Country Companies’ liability solely on an intentional tort theory. The court further decided that MSI’s letter agreeing to pay Country Companies’ defense costs did not estop it from reserving its right to withdraw. This appeal followed the grant of partial summary judgment. This Court has jurisdiction because the court below entered a final judgment as to MSI’s claim under Rule 54(b) of the Federal Rules of Civil Procedure. Country Companies first contends that diversity jurisdiction does not exist because nothing in the record shows that MSI is a Minnesota corporation. MSI’s amended complaint omitted essential jurisdictional allegations, but did assert that its principal place of business was in Minnesota and that the suit was brought under 28 U.S.C. § 1332, the diversity provision of the Judicial Code. Although neither the parties nor the district judge noticed the defect until after the judge had rendered his decision on the merits, it was not too late for Country Companies to question the court’s jurisdiction in its appellate brief. See Fed. R.Civ.P. 12(h)(3); Casio, Inc. v. S.M. & R. Co., 755 F.2d 528, 530 (7th Cir.1985); cf. Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.1982) (per curiam). MSI relies on its Proposed Findings of Fact and Conclusions of Law which proposed that the district court find MSI to be a citizen of Minnesota. We need not decide whether such a proposal is sufficient to establish diversity jurisdiction, since MSI has also requested leave to allege that it is a mutual insurance company incorporated under Minnesota law, conceding “inartful pleading” of its complaint. As we recently noted, 28 U.S.C. § 1653 authorizes the amendment of “defective allegations of jurisdiction.” Newman-Green, Inc. v. Alejandro Alfonzo-Larrain R., 854 F.2d 916, 919 (7th Cir.1988) (en banc). Furthermore, the Federal Rules of Civil Procedure’s liberal amendment rule permits a party who has not proved or even alleged that diversity exists to amend his pleadings even as late as on appeal, and if nothing appears to the appellate court that would bar jurisdiction, jurisdiction is deemed proper, despite the plaintiff’s usual burden of alleging and proving jurisdiction. Buethe v. Britt Airlines, Inc., 787 F.2d 1194 (7th Cir.1986). Such defective allegations of jurisdiction may be amended even after judgment has been entered and an appeal taken. 28 U.S.C. § 1653; Strain v. Harrelson Rubber Co., 742 F.2d 888 (5th Cir.1984). We therefore grant MSI’s request to supplement its complaint by asserting that it is a Minnesota corporation. That does not end our inquiry, however. Country Companies, relying on the Second Circuit’s opinion in Baer v. United Services Automobile Ass’n, 503 F.2d 393 (2d Cir.1974), argues that MSI is an unincorporated association having the citizenship of each of its members, at least one of whom must be an Illinois citizen, thereby destroying diversity jurisdiction. In Baer, the defendant claimed that it was a “reciprocal insurance association,” a type of unincorporated association. Whether it should be considered a corporation for diversity purposes depended on state law. Baer, 503 F.2d at 395 (citing United Steelworkers v. R.H. Bouligny, Inc., 382 U.S. 145, 86 S.Ct. 272, 15 L.Ed.2d 217); see also Cote v. Wadel, 796 F.2d 981, 983 (7th Cir.1986). The court concluded, after examining the relevant Texas statutes, that the defendant was an unincorporated association, in part because though Texas law “subjects both [reciprocal insurance associations and insurance corporations] to the same supervision of state insurance officials,” id. at 394, it does not “intrude upon the traditional distinction drawn between [the two],” id. at 394-395. Country Companies points to similarities between the Minnesota statutory scheme and that of Texas. But Country Companies overlooks the provisions of Minnesota law which provide that mutual insurance companies are incorporated under Minnesota law. Minn.Stat.Ann. § 66A.03. Thus, unlike the defendant in Baer, MSI is a corporation subject to Minnesota’s corporation laws. Minn.Stat.Ann. § 66A.02. See Cote, 796 F.2d at 983 (“a corporation, is a corporation, is a corporation”). Accordingly, subject matter jurisdiction based on diversity of citizenship exists. Having concluded that diversity jurisdiction does exist, we must examine the substantive issue in this case, namely, whether MSI had a duty to defend the underlying Slimack litigation against Country Companies. This case was decided below on a motion for partial summary judgment, in which MSI had the burden of establishing the lack of a genuine issue of material fact. LaSalle Nat’l Bank v. General Mills Restaurant Group, 854 F.2d 1050, 1052-53 (7th Cir.1988). In analyzing the relevant law applied below, significant deference must be given to the district judge’s interpretation of the law of the state in which he sat. Hartford Casualty Ins. Co. v. Argonaut-Midwest Ins. Co., 854 F.2d 279, 282 (7th Cir.1988). The parties here agree that the law of Illinois governs this dispute; therefore we need not address that issue further. Bandag, Inc. v. Nat’l Acceptance Co. of America, 855 F.2d 491, 493 n. 1 (7th Cir.1988). On appeal, Country Companies asserts that as a matter of law, MSI has a duty to defend the Slimack litigation. Our main concern, however, is whether any genuine issues of material fact remain as to MSI’s reservation of the right to bring a declaratory action. We need also address whether this reservation was superseded by either a subsequent agreement or by MSI’s conduct in paying Country Companies’ defense costs. Under Illinois law, it is generally held that an insurer may be estopped from asserting a defense of noncoverage when the insurer undertakes to defend an action against the insured. However, it is also the general rule that this undertaking must result in some prejudice to the insured. See Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 196, 355 N.E.2d 24, 29 (1976). In Gibraltar Ins. Co. v. Varkalis, 46 Ill.2d 481, 263 N.E.2d 823 (1970), the insurer filed an appearance on behalf of its insured in a wrongful death action. Fourteen months later, during which time the insurer had continued the exclusive representation of the insured, the insurer advised the insured that it was representing him under a reservation of rights. Significantly, the Illinois Supreme Court concluded that “[djuring the interim [the insurer] acted on behalf of [the insured] as though no questions of policy coverage were involved, thus clearly causing him to wholly rely for his defense on the efforts of [the insurer].” 46 Ill.2d at 488, 263 N.E.2d at 827. Interpreting this language, this Court in Northwestern Nat’l Ins. Co. v. Corley, 503 F.2d 224, 229 (7th Cir.1974), decided that the quoted language implicitly required a showing of prejudice to the insured before estoppel is established. The Appellate Court of Illinois similarly construed Gibraltar in Greater Chicago Auction, Inc. v. Abram, 25 Ill.App.3d 667, 323 N.E.2d 818 (1st Dist.1975). Such a demonstration of prejudice, however, is not necessary here due to MSI’s prior reservation of rights. The Illinois Appellate Court in Tapp v. Wrightsman-Musso Ins. Agency, 109 Ill.App.3d 928, 930, 65 Ill.Dec. 353, 355, 441 N.E.2d 145, 147 (4th Dist.1982), held that there would be no estoppel where an insurer, such as MSI, expressly reserved its rights and later sought a declaratory judgment. The record here fails to show that any subsequent agreement between the parties superseded MSI’s reservation of right to withdraw from the defense of the Slimack litigation, and accordingly MSI is not es-topped from seeking declaratory relief. The use of a declaratory judgment action in cases such as this has long been supported by Illinois courts, see, e.g., Thornton v. Paul, 74 I11.2d 132,159, 23 Ill.Dec. 541, 551, 384 N.E.2d 335, 345 (1978); Sims v. Illinois Nat’l Casualty Co., 43 Ill.App.2d 184, 193 N.E.2d 123 (3d Dist.1963); Note, Use of the Declaratory Judgment to Determine a Liability Insurer’s Duty to Defend, 41 Ind.L.J. 87 (1965), and we see no reason to prohibit it in the instant scenario. MSI’s payment of some of Country Companies’ defense costs does not estop it from pursuing this declaratory relief. Insurance companies do not breach their requisite duties to defend when they bring suits for declaratory judgment even after first defending under a reservation of rights. Pekin Ins. Co. v. Home Ins. Co., 134 Ill.App.3d 31, 34, 89 Ill.Dec. 72, 479 N.E.2d 1078 (1st Dist.1985). Having disposed of the estoppel claim, it is essential to examine the allegations set forth in the Slimack complaint, which determine the scope of MSI’s duty to defend Country Companies. Illinois Farmers Ins. Co. v. Preston, 153 Ill.App.3d 644, 106 Ill.Dec. 552, 554, 505 N.E.2d 1343, 1345 (2d Dist.1987); Maryland Casualty Co. v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24 (1976); Grinnell Mutual Reinsurance Co. v. Frierdich, 79 Ill.App.3d 1146, 35 Ill.Dec. 418, 399 N.E.2d 252 (5th Dist.1979). An insurer’s duty to defend under a liability policy arises only if facts are set forth in the complaint that are within the coverage provided. Conway v. Country Casualty Ins. Co., 92 Ill.2d 388, 65 Ill.Dec. 934, 442 N.E.2d 245 (1982); Hawkeye Security Ins. Co. v. Hodorowicz, 84 Ill.App.3d 948, 40 Ill.Dec. 445, 406 N.E.2d 146 (1st Dist.1980). Since an insurer need not defend a claim that falls outside of the policy coverage or is excluded, Van Vleck v. Barbee, 115 Ill.App.3d 936, 71 Ill.Dec. 537, 451 N.E.2d 25 (3d Dist.1983), we must look at whether the allegations of Slimack’s complaint fall within the policy’s coverage or within an exclusion from coverage. Both insurance policies solely covered liability which arises out of an “occurrence,” defined as “an accident ... which results in bodily injury or property damage ... neither expected nor intended from the standpoint of the insured.” Similar policy language in other insurance cases has been construed so that intentional torts are deemed outside the scope of such an “occurrence.” For example, an assault was interpreted not to be an occurrence in the recent decision of Bay State Ins. Co. v. Wilson, 96 Ill.2d 487, 493-494, 71 Ill.Dec. 726, 728, 451 N.E.2d 880, 882 (1983). Slimack’s complaint claimed that Country Companies “knowingly” engaged in a scheme or “plan” to deprive the agents of their deserved compensation. When these agents objected, they were either fired or forced to resign. The complaint further alleged that the accounts procured by the agents were reassigned to their replacements. These actions by Country Companies supposedly were “knowingly wrongful, unlawful, and oppressive” in breaching the agency contract. The allegations set forth in Slimack’s complaint plainly predicate liability on a theory of intentional misconduct. In Preston, such a tortious breach of contract committed under a “plan or design” was held to be an intentional tort, one which the insurer had no duty to defend against absent any alternative claims of negligence. 153 Ill.App.3d at 651, 106 Ill.Dec. at 556, 505 N.E.2d at 1347. Similarly, the underlying action in this case falls outside the parameters of both the general liability and umbrella policies covering only unintentional torts. After liberally construing the complaint in the underlying action, the district court refused to allow recovery under a theory of recklessness. This was based on the limiting word “expected” in MSI’s policy. This reasoning was correct, for “[ejven where the damages are not accomplished by design or plan (not intended), they may be of such a nature that they should have been reasonably anticipated (expected) by the insured.” Aetna Casualty & Surety Co. v. Freyer, 89 Ill.App.3d 617, 620, 44 Ill.Dec. 791, 793, 411 N.E.2d 1157, 1159 (1st Dist.1980). This Court recently recognized that an exclusion for “intended” or “expected” damages would be significantly broader than an exclusion for damages caused “intentionally by or at the direction of the insured.” Country Mutual Ins. Co. v. Duncan, 794 F.2d 1211, 1215-1216 (7th Cir.1986). Country Companies should certainly have reasonably anticipated any accompanying financial loss and emotional distress caused by its actions to its agents. The same rationale defeats Country Companies’ argument that the former agents’ complaint “is sufficiently broad to allow them to introduce evidence at trial which would establish negligent infliction of emotional distress” (Def.Br. 20-21). Slimack, et al., however, did not amend the complaint to include a negligence claim. Consequently, they are confined to an intentional tort theory at trial. Stirs, Inc. v. Chicago, 24 Ill.App.3d 118, 125, 320 N.E.2d 216, 220-221 (1st Dist.1974). Had Slimack and his fellow agents alternatively alleged intentional acts and negligence, MSI would have had to defend even though its “occurrence” policy prohibited coverage under intentional torts. See State Security Ins. Co. v. Globe Auto Recycle Corp., 141 Ill.App.3d 133, 136-137, 95 Ill.Dec. 539, 541, 490 N.E.2d 12,14 (1st Dist.1986). Yet as in Preston, MSI should be entitled to a declaratory judgment declaring no duty to defend when Slimack’s complaint alleged non-covered intentional torts and contained no alternative negligence count, regardless of the potential for subsequent amendment. 153 Ill.App.3d at 649, 106 Ill.Dec. at 557, 505 N.E.2d at 1348. Country Companies’ final dispute regarding an alleged “conflict of interest” between it and MSI did not preclude the district court from declaring the respective rights of the parties. The purpose of MSI’s suit was to establish whether the Slimack complaint alleged a covered loss. Unlike the authorities relied on by Country Companies, declaring the rights between insurer and insured here does not preempt decision of any factual issue in the underlying lawsuit. Accordingly, the district court’s grant of partial summary judgment is affirmed. . These other parties, defendants below, include Glen Merwin, Larry Brighton, Dennis Speck-man, Carl Kunz, Leroy Hamman, Leonard Brockmeyer, James Lyons, Donald Koenig, Noel Roberts, David Baggett, Merrell Litherland and Larry Taylor. . In its answer, Country Companies admitted that MSI "was an insurance company with its principal place of buisness in St. Paul, Minnesota” and "that MSI claims the jurisdiction is based on 28 U.S.C. § 1332” (Df.App. 76, 77). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genapel1	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. Alberta M. McCURDY, Administratrix of the Estate of Robert A. McCurdy, Deceased, Appellant, v. GREYHOUND CORPORATION. No. 15122. United States Court of Appeals Third Circuit. Argued April 23, 1965. Decided May 18, 1965. James C. Larrimer, Dougherty, Larrimer & Lee, Pittsburgh, Pa., for appellant. Randall J. McConnell, Jr., Dickie, Mc-Camey, Chilcote & Robinson, Pittsburgh, Pa., for appellee. Before McLAUGHLIN, STALEY and SMITH, Circuit Judges. STALEY, Circuit Judge. The administratrix of Robert A. McCurdy brought this wrongful death action, alleging negligence on the part of defendant’s employee-bus driver. Federal jurisdiction was based solely on diversity of citizenship. The accident allegedly occurred when McCurdy, who was driving along a main street in the city of Pittsburgh, was blinded temporarily by the bright lights of a bus approaching him from the rear. This caused him to crash into a safety island in the center of the street. He allegedly sustained brain damage which led directly to his death four days later. No one but McCurdy saw the accident. The only evidence offered to prove that the bus was responsible for the accident was a statement made by McCurdy to police officers who arrived at the scene shortly after the event occurred. The statement was deemed inadmissible by the district court which then directed a verdict against the plaintiff. Plaintiff’s motion for a new trial was denied. As we are convinced that the statement came within the “res gestae” exception to the hearsay rule, we are compelled to reverse and remand for a new trial. The essential facts can be briefly set forth. Plaintiff’s decedent left work in the American Telephone & Telegraph Building in the downtown area of the city of Pittsburgh some time after 11:15 P.M. on June 24, 1962. A short time thereafter the accident happened. Although it is not possible to specify the time of the accident to the minute, it is clear that it must have happened some time between 11:30 and 11:45 P.M. One witness, who testified that he came out of a nearby building shortly after the event occurred, said that the police came within 10 or 15 minutes of his arrival. It was stipulated by Greyhound that a bus left the terminal at approximately 11:30 P.M. This would have placed it at the scene of the accident a few minutes later. The police arrived at 11:45 P.M. They immediately asked McCurdy, who was seated in his car, how it had happened. He said that the lights from the Greyhound bus had caused it. Testimony of other persons who had observed events from the sidewalk during the time between the accident and the arrival of the police was introduced at the trial to show that McCurdy was strongly under the influence of the event when the police arrived. Robert E. Cooper, a guard in a building adjacent to the street, went outside immediately after the accident. He found McCurdy getting out of the car and asked him what had happened. The only reply was an incomprehensible mumble. According to Cooper’s testimony, McCurdy then “ * * * looked at his car and was looking at it and went over to the Union Trust Building [the building in which Cooper worked] then leaned there for a couple of seconds and then walked on toward the Penn-Sheraton Hotel [the next building on the street] * * The police officers who arrived on the scene were in the course of their regular patrol. They had not been called by McCurdy. When they arrived, they found the decedent in the car. At this point, he was still “extremely nervous” and “shooken up”. Over the years the Pennsylvania courts and this court have recognized that a hearsay statement is admissible as part of the “res gestae” if made by a participant in the event during a period when he was, for any reason, incapable of reasoned reflection about the occurrence. Giffin v. Ensign, 234 F.2d 307 (C.A.3, 1956); Campbell v. Gladden, 383 Pa. 144, 118 A.2d 133, 135, 53 A.L.R.2d 1222 (1955); Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952); Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942); Broad Street Trust Co. v. Heyl Bros., 128 Pa.Super. 65, 193 A. 397 (1937); Smith v. Stoner, 243 Pa. 57, 89 A. 795, 797 (1914); Uniform Rules of Evidence, Rule 62(4) (b); Model Code of Evidence, Rule 512. Such a statement is trustworthy if made during the period when “considerations of self-interest could not have been brought fully to bear” on the event. 3 Wigmore, Evidence 738 (2d ed.) as quoted in Allen v. Mack, 28 A.2d at 784. In each case the court is required to examine the facts in light of the general principles. Commonwealth v. Noble, supra. Thus, extensive examination of applicable authorities and comparison of decisions based on the analysis of other quite diverse fact patterns is neither necessary nor useful. No arbitrary time or other limits on the operation of the rule have been accepted by the Pennsylvania courts. Campbell v. Gladden, supra; Commonwealth v. Noble, supra; Smith v. State Workmen’s Ins. Fund, 140 Pa.Super. 602, 14 A.2d 554 (1940); Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56, 58 (1924). Examination of the facts before us leads to the conclusion that during the brief period before the police arrived, McCurdy was in such a state of nervousness and shock as to be incapable of reasoned reflection. He muttered incomprehensibly at first. He walked aimlessly down the street and returned to his car. Very shortly thereafter when the police arrived, McCurdy was still noticeably “nervous” and “shooken up”. In view of this, there is little danger that he had either the time to reflect or sufficient use of his reason to fabricate and manufacture an account of the accident. In these circumstances, it is clear that the utterance was part of the res gestae and that the question of its credibility should have been submitted to the jury for that body to pass upon. The judgment of the district court will be reversed and the cause remanded for a new trial. . Once again this court has been required to inquire into jurisdiction in a diversity case. See Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449 (C.A.3, 1964). The jurisdictional averments in the complaint alleged only that (a) plaintiff and her decedent were citizens of Pennsylvania, and (b) Greyhound is a citizen of Delaware and has an office for the conduct of business in Pittsburgh. Such a set of averments is patently insufficient under the statute. 28 U.S.C. § 1332. Because it was clear that jurisdiction in fact existed, we permitted counsel to stipulate as authorized by 28 U.S.C. § 1653. The matter is one that should, however, have been taken care of by counsel acting alone or at the insistence of the district court. . The District Court, in its opinion denying a new trial, stated that the time which elapsed between the time of the accident and the statement to the police was twenty-five minutes or more. A reading of the record indicates clearly that this was in error. It is quite apparent that the District Court was alluding to the time the decedent assisted the police in making out their report rather than to the time they first arrived which was when the statement in question was made. . As we indicate in the body of the opinion there was an allegation that the plaintiff sustained brain damage which led to his death four days after the event. A study of the record indicates that the plaintiff did not attempt to establish by medical evidence what the decedent’s medical condition was immediately after the accident. This undoubtedly could have been done in view of the alleged consequences of the accident. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_lcdisposition	E	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. EISENSTADT, SHERIFF v. BAIRD No. 70-17. Argued November 17-18, 1971 Decided March 22, 1972 BreNNAN, J., delivered the opinion of the Court, in which Douglas, Stewart, and Marshall, JJ., joined. Douglas, J., filed a concurring opinion, post, p. 455. White, J., filed an opinion concurring in the result, in which BlackmuN, J., joined, post, p. 460. Burger, C. J., filed a dissenting opinion, post, p. 465. Powell and RehNQUist, JJ., took no part in the consideration or decision of the case. Joseph R. Nolan, Special Assistant Attorney General of Massachusetts, argued the cause for appellant. With him on the brief were Robert H. Quinn, Attorney General, John J. Irwin, Jr., and Ruth I. Abrams, Assistant Attorneys General, and Garrett H. Byrne. Joseph D. Tydings argued the cause for appellee. With him on the briefs was Joseph J. Balliro. Briefs of amici curiae urging affirmance were filed by Harriet F. Pilpel and Nancy F. Wechsler for the Planned Parenthood Federation of America, Inc.; by Roger P. Stokey for the Planned Parenthood League of Massachusetts; by Melvin L. Wulf for the American Civil Liberties Union et al.; and by Sylvia S. Ellison for Human Rights for Women, Inc. Mr. Justice Brennan delivered the opinion of the Court. Appellee William Baird was convicted at a bench trial in the Massachusetts Superior Court under Massachusetts General Laws Ann., c. 272, § 21, first, for exhibiting contraceptive articles in the course of delivering a lecture on contraception to a group of students at Boston University and, second, for giving a young woman a package of Emko vaginal foam at the close of his address. The Massachusetts Supreme Judicial Court unanimously set aside the conviction for exhibiting contraceptives on the ground that it violated Baird’s First Amendment rights, but by a four-to-three vote sustained the conviction for giving away the foam. Commonwealth v. Baird, 355 Mass. 746, 247 N. E. 2d 574 (1969). Baird subsequently filed a petition for a federal writ of habeas corpus, which the District Court dismissed. 310 F. Supp. 951 (1970). On appeal, however, the Court of Appeals for the First Circuit vacated the dismissal and remanded the action with directions to grant the writ discharging Baird. 429 F. 2d 1398 (1970). This appeal by the Sheriff of Suffolk County, Massachusetts, followed, and we noted probable jurisdiction. 401 U. S. 934 (1971). We affirm. Massachusetts General Laws Ann., c. 272, § 21, under which Baird was convicted, provides a maximum five-year term of imprisonment for “whoever . . . gives away . . . any drug, medicine, instrument or article whatever for the prevention of conception,” except as authorized in § 21A. Under § 21 A, “[a] registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. [And a] registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician.” As interpreted by the State Supreme Judicial Court, these provisions make it a felony for anyone, other than a registered physician or pharmacist acting in accordance with the terms of § 21A, to dispense any article with the intention that it be used for the prevention of conception. The statutory scheme distinguishes among three distinct classes of distributees — first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent, not pregnancy, but the spread of disease. This construction of state law is, of course, binding on us. E. g., Groppi v. Wisconsin, 400 U. S. 505, 507 (1971). The legislative purposes that the statute is meant to serve are not altogether clear. In Commonwealth v. Baird, supra, the Supreme Judicial Court noted only the State’s interest in protecting the health of its citizens: “[T]he prohibition in §21,” the court declared, “is directly related to” the State’s goal of “preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences.” 355 Mass., at 753, 247 N. E. 2d, at 578. In a subsequent decision, Sturgis v. Attorney General, 358 Mass. 37, -, 260 N. E. 2d 687, 690 (1970), the court, however, found “a second and more compelling ground for upholding the statute” — namely, to protect morals through “regulating the private sexual lives of single persons.” The Court of Appeals, for reasons that will appear, did not consider the promotion of health or the protection of morals through the deterrence of fornication to be the legislative aim. Instead, the court concluded that the statutory goal was to limit contraception in and of itself — a purpose that the court held conflicted “with fundamental human rights” under Griswold v. Connecticut, 381 U. S. 479 (1965), where this Court struck down Connecticut’s prohibition against the use of contraceptives as an unconstitutional infringement of the right of marital privacy. 429 F. 2d, at 1401-1402. We agree that the goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of §§21 and 21 A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment. I We address at the outset appellant’s contention that Baird does not have standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under § 21A nor a single person unable to obtain contraceptives. There can be no question, of course, that Baird has sufficient interest in challenging the statute’s validity to satisfy the “case or controversy” requirement of Article III of the Constitution. Appellant’s argument, however, is that this case is governed by the Court’s self-imposed rules of restraint, first, that “one to whom application of a statute is constitutional will not be heard to attack the statute on the . ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional,” United States v. Raines, 362 U. S. 17, 21 (1960), and, second, the “closely related corollary that a litigant may only assert his own constitutional rights or immunities,” id., at 22. Here, appellant contends that Baird’s conviction rests on the restriction in § 21A on permissible distributors and that that restriction serves a valid health interest independent of the limitation on authorized distributees. Appellant urges, therefore, that Baird’s action in giving away the foam fell squarely within the conduct- that the legislature meant and had power to prohibit and that Baird should not be allowed to attack the statute in its application to potential recipients. In any event, appellant concludes, since Baird was not himself a single person denied access to contraceptives, he should not be heard to assert their rights. We cannot agree. The Court of Appeals held that the statute under which Baird was convicted is not a health measure. If that view is correct, we do not see how Baird may be prevented, because he was neither a doctor nor a druggist, from attacking the statute in its alleged discriminatory application to potential distributees. We think, too, that our self-imposed rule against the assertion of third-party rights must be relaxed in this case just as in Griswold v. Connecticut, supra. There the Executive Director of the Planned Parenthood League of Connecticut and a licensed physician who had prescribed contraceptives for married persons and been convicted as accessories to the crime of using contraceptives were held to have standing to raise the constitutional rights of the patients with whom they had a professional relationship. Appellant herPargues that the absence of a professional or aiding^aSM-abetting relationship distinguishes this case from (jmswold. 'Yet, as the Court’s discussion of prior authority in Griswold, 381 U. S., at 481, indicates, the doctor-patient and accessory-principal relationships are not the only circumstances in which one person has been found to have standing to assert the rights of another. Indeed, in Barrows v. Jackson, 346 U. S. 249 (1953), a seller of land was entitled to defend against an action for damages for breach of a racially restrictive covenant on the ground that enforcement of the covenant violated the equal protection rights of prospective non-Caucasian purchasers. The relationship there between the defendant and those whose rights he sought to assert was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself. Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962). And so here the relationship between Baird and those whose rights he seeks to assert is not simply that between a distributor and potential distributees, but that between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so. The very point of Baird’s giving away the vaginal foam was to challenge the Massachusetts statute that limited access to contraceptives. In any event, more important than the nature of the relationship between the litigant and those whose rights he seeks to assert is the impact of the litigation on the third-party interests. In Griswold, 381 U. S., at 481, the Court stated: “The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those rights are considered in a suit involving those who have this kind of confidential relation to them.” A similar situation obtains here. Enforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives. In fact, the case for according standing to assert third-party rights is stronger in this regard here than in Griswold because unmarried persons denied access to contraceptives in Massachusetts, unlike the users of contraceptives in Connecticut, are not themselves subject to prosecution and, to that extent, are denied a forum in which to assert their own rights. Cf. NAACP v. Alabama, 357 U. S. 449 (1958); Barrows v. Jackson, supra. The Massachusetts statute, unlike the Connecticut law considered in Gris-wold, prohibits, not use, but distribution. For the foregoing reasons we hold that Baird, who is now in a position, and plainly has an adequate incentive, to assert the rights of unmarried persons denied access to contraceptives, has standing to do so. We turn to the merits. II The basic principles governing application of the Equal Protection Clause of the Fourteenth Amendment are familiar. As The Chief Justice only recently explained in Reed v. Reed, 404 U. S. 71, 75-76 (1971): “In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920).” The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts General Laws Ann., c. 272, §§21 and 21 A. For the reasons that follow, we conclude that no such ground exists. First. Section 21 stems from Mass. Stat. 1879, c. 159, § 1, which prohibited, without exception, distribution of articles intended to be used as contraceptives. In Commonwealth v. Allison, 227 Mass. 57, 62, 116 N. E. 265, 266 (1917), the Massachusetts Supreme Judicial Court explained that the law’s “plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women.” Although the State clearly abandoned that purpose with the enactment of § 21A, at least insofar as the illicit sexual activities of married persons are concerned, see n. 3, supra, the court reiterated in Sturgis v. Attorney General, supra, that the object of the legislation is to discourage premarital sexual intercourse. Conceding that the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as “[e] vils ... of different dimensions and proportions, requiring different remedies,” Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955), we cannot agree that the deterrence of premarital sex may reasonably be regarded as the purpose of the Massachusetts law. It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication, which is a misdemeanor under Massachusetts General Laws Ann., c. 272, § 18. Aside from the scheme of values that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective. What Mr. Justice Goldberg said in Griswold v. Connecticut, supra, at 498 (concurring opinion), concerning the effect of Connecticut’s prohibition on the use of contraceptives in discouraging extramarital sexual relations, is equally applicable here. “The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception.” See also id., at 505-507 (White, J., concurring in judgment). Like Connecticut’s laws, §§21 and 21A do not at all regulate the distribution of contraceptives when they are to be used to prevent, not pregnancy, but the spread of disease. Commonwealth v. Corbett, 307 Mass. 7, 29 N. E. 2d 151 (1940), cited with approval in Commonwealth v. Baird, 355 Mass., at 754, 247 N. E. 2d, at 579. Nor, in making contraceptives available to married persons without regard to their intended use, does Massachusetts attempt to deter married persons from engaging in illicit sexual relations with unmarried persons. Even on the assumption that the fear of pregnancy operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim. Moreover, §§21 and 21A on their face have a dubious relation to the State’s criminal prohibition on fornication. As the Court of Appeals explained, “Fornication is a misdemeanor [in Massachusetts], entailing a thirty dollar fine, or three months in jail. Massachusetts General Laws Ann. c. 272 § IS. Violation of the present statute is a felony, punishable by five years in prison. We find it hard to believe that the legislature adopted a statute carrying a five-year penalty for its possible, obviously by no means fully effective, deterrence of the commission of a ninety-day misdemeanor.” 429 F. 2d, at 1401. Even conceding the legislature a full measure of discretion in fashioning means to prevent fornication, and recognizing that the State may seek to deter prohibited conduct by punishing more severely those who facilitate than those who actually engage in its commission, we, like the Court of Appeals, cannot believe that in this instance Massachusetts has chosen to expose the aider and abetter who simply gives away a contraceptive to 20 times the 90-day sentence of the offender himself. The very terms of the State’s criminal statutes, coupled with the de minimis effect of §§21 and 21A in deterring fornication, thus compel the conclusion that such deterrence cannot reasonably be taken as the purpose of the ban on distribution of contraceptives to unmarried persons. Second. Section 21A was added to the Massachusetts General Laws by Stat. 1966, c. 265, § 1. The Supreme Judicial Court in Commonwealth v. Baird, supra, held that the purpose of the amendment was to serve the health needs of the community by regulating the distribution of potentially harmful articles. It is plain that Massachusetts had no such purpose in mind before the enactment of § 21A. As the Court of Appeals remarked, “Consistent with the fact that the statute was contained in a chapter dealing with ‘Crimes Against Chastity, Morality, Decency and Good Order,’ it was cast only in terms of morals. A physician was forbidden to prescribe contraceptives even when needed for the protection of health. Commonwealth v. Gardner, 1938, 300 Mass. 372, 15 N. E. 2d 222.” 429 F. 2d, at 1401. Nor did the Court of Appeals “believe that the legislature [in enacting § 21A] suddenly reversed its field and developed an interest in health. Rather, it merely made what it thought to be the precise accommodation necessary to escape the Griswold ruling.” Ibid. Again, we must agree with the Court of Appeals. If health were the rationale of § 21A, the statute would be both discriminatory and overbroad. Dissenting in Commonwealth v. Baird, 355 Mass., at 758, 247 N. E. 2d, at 581, Justices Whittemore and Cutter stated that they saw “in § 21 and § 21A, read together, no public health purpose. If there is need to have a physician prescribe (and a pharmacist dispense) contraceptives, that need is as great for unmarried persons as for married persons.” The Court of Appeals added: “If the prohibition [on distribution to unmarried persons] ... is to be taken to mean that the same physician who can prescribe for married patients does not have sufficient skill to protect the health of patients who lack a marriage certificate, or who may be currently divorced, it is illogical to the point of irrationality.” 429 F. 2d, at 1401. Furthermore, we must join the Court of Appeals in noting that not all contraceptives are potentially dangerous. As a result, if the Massachusetts statute were a health measure, it would not only invidiously discriminate against the unmarried, but also be overbroad with respect to the married, a fact that the Supreme Judicial Court itself seems to have conceded in Sturgis v. Attorney General, 358 Mass., at -, 260 N. E. 2d, at 690, where it noted that “it may well be that certain contraceptive medication and devices constitute no hazard to health, in which event it could be argued that the statute swept too broadly in its prohibition.” “In-this posture,” as the Court of Appeals concluded, “it is impossible to think of the statute as intended as a health measure for the unmarried, and it is almost as difficult to think of it as so intended even as to the married.” 429 F. 2d, at 1401. But if further proof that the Massachusetts statute is not a health measure is necessary, the argument of Justice Spiegel, who also dissented in Commonwealth v. Baird, 355 Mass., at 759, 247 N. E. 2d, at 582, is conclusive : “It is at best a strained conception to say that the Legislature intended to prevent the distribution of articles 'which may have undesirable, if not dangerous, physical consequences.’ If that was the Legislature’s goal, § 21 is not required” in view of the federal and state laws already regulating the distribution of harmful drugs. See Federal Food, Drug, and Cosmetic Act, § 503, 52 Stat. 1051, as amended, 21 U. S. C. § 353; Mass. Gen. Laws Ann., c. 94, § 187A, as amended. We conclude, accordingly, that, despite the statute’s superficial earmarks as a health measure, health, on the face of the statute, may no more reasonably be regarded as its purpose than the deterrence of premarital sexual relations. Third. If the Massachusetts statute cannot be upheld as a deterrent to fornication or as a health measure, may it, nevertheless, be sustained simply as a prohibition on contraception? The Court of Appeals analysis “led inevitably to the conclusion that, so far as morals are concerned, it is contraceptives per se that are considered immoral — to thq extent that Griswold will permit such a declaration.” 429 F. 2d, at 1401-1402. The Court of Appeals went on to hold, id., at 1402: “To say that contraceptives are immoral as such, and are to be forbidden to unmarried persons who will nevertheless persist in having intercourse, means that such persons must risk for themselves an unwanted pregnancy, for the child, illegitimacy, and for society, a possible obligation of support. Such a view of morality is not only the very mirror image of sensible legislation; we consider that it conflicts with fundamental human rights. In the absence of demonstrated harm, we hold it is beyond the competency of the state.” We need not and do not, however, decide that important question in this case because, 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. If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the \ marital couple is not an independent entity with a mind . and heart of its own, but an association of two individ- \| uals each with a separate intellectual and emotional / makeup. If the right of privacy means anything, it is j the right of the individual, married or single, to be free j from unwarranted governmental intrusion into matters] so fundamentally affecting a person as the decision] whether to bear or beget a child. See Stanley v. Georgia, 394 U. S. 557 (1969). See also Skinner v. Okla homa, 316 U. S. 535 (1942); Jacobson v. Massachusetts, 197 U. S. 11, 29 (1905). On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious. Mr. Justice Jackson, concurring in Railway Express Agency v. New York, 336 U. S. 106, 112-113 (1949), made the point: “The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.” Although Mr. Justice Jackson’s comments had reference to administrative regulations, the principle he affirmed has equal application to the legislation here. We hold that by providing dissimilar treatment for married and unmarried persons who are similarly situated, Massachusetts General Laws Ann., c. 272, §§21 and 21 A, violate the Equal Protection Clause. The judgment of the Court of Appeals is Affirmed. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. The Court of Appeals below described the recipient of the foam as “an unmarried adult woman.” 429 F. 2d 1398, 1399 (1970). However, there is no evidence in the record about her marital status. Section 21 provides in full: “Except as provided in section twenty-one A, whoever sells, lends, gives away, exhibits or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse, or any drug, medicine, instrument or article whatever for the prevention of conception or for causing unlawful abortion, or advertises the same, or writes, prints, or causes to be written or printed a card, circular, book, pamphlet, advertisement or notice of any kind stating when, where, how, of whom or by what means such article can be purchased or obtained, or manufactures or makes any such article shall be punished by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years or by a fine of not less than one hundred nor more than one thousand dollars.” Section 21A provides in full: “A registered physician may administer to or prescribe for any married person drugs or articles intended for the prevention of pregnancy or conception. A registered pharmacist actually engaged in the business of pharmacy may furnish such drugs or articles to any married person presenting a prescription from a registered physician. “A public health agency, a registered nurse, or a maternity health clinic operated by or in an accredited hospital may furnish information to any married person as to where professional advice regarding such drugs or articles may be lawfully obtained. “This section shall not be construed as affecting the provisions of sections twenty and twenty-one relative to prohibition of advertising of drugs or articles intended for the prevention of pregnancy or conception; nor shall this section be construed so as to permit the sale or dispensing of such drugs or articles by means of any vending machine or similar device.” Appellant suggests that the purpose of the Massachusetts statute is to promote marital fidelity as well as to discourage premarital sex. Under § 21A, however, contraceptives may be made available to married persons without regard to whether they are living with their spouses or the uses to which the contraceptives are to be put. Plainly the legislation has no deterrent effect on extramarital sexual relations. This factor decisively distinguishes Tileston v. Ullman, 318 U. S. 44 (1943), where the Court held that a physician lacked standing to bring an action for declaratory relief to challenge, on behalf of his patients, the Connecticut law prohibiting the use of contraceptives. The patients were fully able to bring their own action. Underlying the decision was the concern that “the standards of 'case or controversy’ in Article III of the Constitution [not] become blurred,” Griswold v. Connecticut, 381 U. S. 479, 481 (1965)— a problem that is not at all involved in this ease. Indeed, in First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech. E. g., Thornhill v. Alabama, 310 U. S. 88, 97-98 (1940). See United States v. Raines, 362 U. S. 17, 22 (1960). See also Prince v. Massachusetts, 321 U. S. 158 (1944), where a custodian, in violation of state law, furnished a child with magazines to distribute on the streets. The Court there implicitly held that the custodian had standing to assert alleged freedom of religion and equal protection rights of the child that were threatened in the very litigation before the Court and that the child had no effective way of asserting herself. Of course, if we were to conclude that the Massachusetts statute impinges upon fundamental freedoms under Griswold, the statutory classification would have to be not merely rationally related to a valid public purpose but necessary to the achievement of a compelling state interest. E. g., Shapiro v. Thompson, 394 U. S. 618 (1969); Loving v. Virginia, 388 U. S. 1 (1967). But just as in Reed v. Reed, 404 U. S. 71 (1971), we do not have to address the statute’s validity under that test because the law fails to satisfy even the more lenient equal protection standard. Appellant insists that the unmarried have no right to engage in sexual intercourse and hence no health interest in contraception that needs to be served. The short answer to this contention is that the same devices the distribution of which the State purports to regulate when their asserted purpose is to forestall pregnancy are available without any controls whatsoever so long as their asserted purpose is to prevent the spread of disease. It is inconceivable that the need for health controls varies with the purpose for which the contraceptive is to be used when the physical act in all cases is one and the same. The Court of Appeals stated, 429 F. 2d, at 1401: “[W]e must take notice that not all contraceptive devices risk 'undesirable . . . [or] dangerous physical consequences.’ It is 200 years since Casanova recorded the ubiquitous article which, perhaps because of the birthplace of its inventor, he termed a ‘redingote anglais.’ The reputed nationality of the condom has now changed, but we have never heard criticism of it on the side of health. We cannot think that the legislature was unaware of it, or could have thought that it needed a medical prescription. We believe the same could be said of certain other products.” In Stanley, 394 U. S., at 564, the Court stated: “[A]Iso fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy. “ ‘The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized man.’ Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting). “See Griswold v. Connecticut, supra; cf. NAACP v. Alabama, 357 U. S. 449, 462 (1958).” Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CHRYSLER CORPORATION and Chrysler Motors Corporation, Plaintiffs-Appellees, v. Vincent L. TOFANY and William E. Kirwan, Defendants-Appellants. CHRYSLER CORPORATION and Chrysler Motors Corporation, Plaintiffs-Appellees, v. James E. MALLOY and Raymond E. Grout, Defendants-Appellants. Nos. 13 and 73, Dockets 33497 and 33509. United States Court of Appeals Second Circuit. Argued Sept. 16, 1969. Decided Nov. 7, 1969. Robert L. Ackerly, Washington, D. C. (W. Stanfield Johnson, Sellers, Conner & Cuneo, Washington, D. C., Francis S. Bensel, Robert M. Davidson, Kelley, Drye, Newhall, Maginnes & Warren, New York, N. Y., on the brief), for plaintiffs-ap-pellees Chrysler Corporation and Chrysler Motors Corporation. Jeremiah Jochnowitz, Albany, N. Y. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Ruth Kessler Toch, Sol. Gen., on the brief), for defendants-appellants, Vincent L. Tofany and William E. Kirwan. Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Morton Hollander, Atty., Washington, D. C., on the brief), for the United States as amicus curiae. William T. Keefe, Burlington, Vt., for the State of Vermont. John H. Pickering, William R. Perlik, Timothy B. Dyk, Michael R. Klein, Washington, D. C.; Allen F. Maulsby, Cra-vath, Swaine & Moore, New York City, on the brief, for Automobile Manufacturers Association, Inc., as amicus curiae. Before LUMBARD, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges. LUMBARD, Chief Judge. These consolidated appeals by public officials of the states of Vermont and New York arise from declaratory judgments and accompanying orders in favor of Chrysler Corporation and Chrysler Motors Corporation (“Chrysler”) entered by the United States District Courts for the District of Vermont and the Northern District of New York. Both district courts held that state regulation of Super Lite, an extra headlamp offered as an optional accessory on some of Chrysler’s 1969 Dodge automobiles, is preempted by the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381-1425 (Supp. III 1966) (the “Act”), and Federal Motor Vehicle Safety Standard No. 108, 49 C.F.R. § 371.21 (1969) (“Standard No. 108”), issued pursuant to the federal statute. The Vermont district court entered judgment for Chrysler after a trial and the New York district court granted plaintiff Chrysler’s motion for summary judgment. Both courts enjoined the defendant state officials from attempting to regulate Chrysler’s sale of automobiles equipped with Super Lite. Since we disagree with the district courts on the issue of federal preemption, we reverse both judgments. I. The Facts Chrysler designed and installed the additional headlamp called Super Lite as optional equipment on certain models in its 1969 Dodge line of automobiles. According to Chrysler, the purpose of Super Lite is to produce additional forward visibility by supplementing the regular low-beam headlamps with a controlled, rectangular beam of light produced by a new type of bulb and a new optical principle. The 1969 Dodge line was introduced nationally on September 19, 1968, but even before that date Chrysler’s troubles with Super Lite began. Prior to the introduction date, defendants Malloy and Grout, officials of the state of Vermont, required Chrysler to submit Super Lite to them for presale approval under the applicable Vermont statutes. Just prior to September 19th, the Vermont officials advised Chrysler that the sale of cars equipped with Super Lite without the approval of the Vermont Commissioner of Motor Vehicles would violate state law. .Since approval had not been granted, on September 19, 1968, Chrysler filed a complaint in the district court in Vermont seeking a declaratory judgment that the attempted state regulation of Super Lite was preempted by the federal Act and Standard No. 108. The complaint also sought a temporary restraining order and a permanent injunction against state restrictions on the sale of Dodges equipped with Super Lite. In mid-October, 1968, defendants Tof-any and Kirwan, officials of the State of New York, orally advised Chrysler that 1969 Dodges with Super Lite did not comply with the requirements of the New York State Motor Vehicle Code. Chrysler promptly sought declaratory and ancillary injunctive relief in the Northern District of New York. Chrysler’s complaint in the New York action stated that Super Lite “provides the driver of the vehicle with additional night visibility, primarily to permit safe driving on high speed highways without the glaring effects of high beam headlamps on other drivers on the highway.” The record before us indicates that both the New York and Vermont officials were quite concerned about the effect on other drivers of the glare which Super Lite produced when used on hilly or winding two-lane roads. Since Vermont and many areas of New York have a predominance of such roads, unlike the mid-western, prairie or southwestern states, this finding was of special importance. In addition, officials of both states expressed some concern that the new Chrysler option emitted a blue glow which appeared at times to flash. Since both states reserve the use of blue signal lights for certain emergency vehicles, this was a further reason for prohibiting the sale of Super Lite. The propriety of these conclusions by state officials is not before us on these appeals; we are faced with only the narrow legal question of federal preemption. Meanwhile, state officials in New Hampshire expressed similar concern about Super Lite. On September 18, 1968, they wrote a letter to all automobile dealers in the state which declared, in effect, that Super Lite had not been approved by the New Hampshire Division of Motor Vehicles and that cars equipped with the extra light would therefore “not be able to be inspected” as required by state law. Chrysler sought declaratory and injunctive relief in federal district court in New Hampshire on September 19, 1968. Before any of the states had attempted to ban Super Lite, Chrysler was in contact with the Federal Highway Administration, the agency within the Department of Transportation charged with administering the federal Act. On September 11, 1968, Chrysler's “Federal Safety Coordinator” wrote to the National Highway Safety Bureau, an arm of the Federal Highway Administration. Chrysler included with its letter technical data for Super Lite, and it stated that it intended to offer the extra headlamp as an option on some of its 1969 models. Dr. William Haddon, Jr., Director of the Bureau, replied in a letter dated September 17, 1968, which made clear the agency’s position on the issue of federal and state regulation of Super Lite. Dr. Haddon stated, in part: You are correct in your understanding that a supplemental light of this type is not required by Federal Motor Vehicle Safety Standard No. 108. Standard No. 108 does, however, specify, in Paragraph S3.1.2, that no additional lamp, reflective device, or associated equipment shall be installed if it impairs the effectiveness of the required equipment. On the basis of our review of your technical literature on the Super Lite and our observation of limited field demonstrations of the light, it does not appear that the Super Lite will impair the effectiveness of the lighting equipment required by Standard No. 108. It should be noted, however that, while the incorporation of this lamp in your 1969 automobiles would not be precluded by the Federal Standard, the various states may interpose restrictions as to this lamp. All three federal districts courts granted Chrysler’s requests for temporary in-junctive relief. On December 5, 1968, however, Judge Bownes of the District of New Hampshire rendered a final decision in favor of the defendant New Hampshire officials. Chrysler Corporation v. Rhodes, 294 F.Supp. 665 (D.N.H. 1968). This decision was affirmed by the First Circuit, 416 F.2d 319 (1st Cir. June 26, 1968), and Chrysler’s petition for a rehearing was denied. 416 F.2d 324 (1st Cir. July 25, 1968). However, in the Vermont action, Judge Leddy held for the plaintiff Chrysler on December 30, 1968. Chrysler Corporation v. Malloy, 294 F.Supp. 524 (D.Vt. 1968). Over two months later, Judge Foley of the Northern District of New York, relying heavily on Judge Leddy’s opinion, granted Chrysler’s motion for summary judgment. Chrysler Corporation v. Tofany, 305 F.Supp. 971 (N.D.N.Y. March 13, 1969). II. The Federal Regulatory Scheme The Act directs the Department of Transportation to establish Federal Motor Vehicle Safety Standards, 15 U.S.C. § 1392(a). Each standard is to be a “minimum standard for motor vehicle performance, or motor vehicle equipment performance, which is practicable, which meets the need for motor vehicle safety and which provides objective criteria.” In issuing a standard, the Department must consider whether the proposal is “reasonable, practicable and appropriate for the particular type of motor vehicle or item of motor vehicle equipment for which it is prescribed” and the extent to which it “will contribute to carrying out the purposes of” the Act. 15 U.S.C. §§ 1392(f) (3), 1392(f) (4). The Department is also to consult with other public agencies and to consider other relevant motor vehicle safety data when it deems it appropriate. 15 U.S.C. §§ 1392(f) (1), 1392(f) (2). The Department must, when issuing standards, comply with the rulemaking provisions of the Administrative Procedure Act. 15 U.S.C. § 1392(b). Once standards have been promulgated, each automobile manufacturer must certify that “each such vehicle or item of motor vehicle equipment conforms to all applicable Federal motor vehicle safety standards.” 15 U.S.C. § 1403. The Act provides for civil penalties, and the United States is also permitted to seek injunctive relief in federal district courts to restrain violations of the Act. 15 U.S. C. §§ 1398, 1399. Pursuant to this authority, the Secretary of the Department of Transportation issued the initial set of standards on January 30, 1967. The Secretary then delegated the power to establish standards to the Administrator of the Federal Highway Administration; the Administrator has since amended some of the original standards and has added several new standards. The standard with which we are concerned is Standard No. 108. According to its “purpose and scope” section, Standard No. 108 “specifies requirements for lamps, reflective devices, and associated equipment, for signalling and to enable safe operation in darkness and other conditions of reduced visibility.” All that this provision does is to inform the reader in a very general way what kind of requirements the standard will impose. The requirements themselves are contained in a number of subsections and four detailed tables; the sum and substance of these requirements is that all new ears must come equipped with certain items of lighting equipment and that the required items must meet specific levels of performance. There are many kinds of lamps which are not required: fog lamps are not mentioned, and interior lighting is not covered. Additional headlamps such as Super Lite are not required by Standard No. 108. However, S3.1.2 of Standard No. 108 does provide that “[n]o additional lamp, reflective device, and associated equipment shall be installed if it impairs the effectiveness of the required equipment.” The preemptive effect of the many existing standards is governed by section 1392(d) of the Act, which states: Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard. This provision indicates that state regulation of an item of motor vehicle equipment will be preempted only if the following factors appear in combination: (1) a federal standard in effect which covers that item of equipment; (2) a state safety standard (here, attempted state regulation pursuant to state statutes) for the item which is not identical to the federal standard; and (3) application of the state and federal regulations to “the same aspect of performance” of the item of equipment. The federal Act does not contain any provision requiring automobile manufacturers to submit new equipment items to the Federal Highway Administration for presale approval. Thus, many new items of automotive equipment may be developed each year which were never contemplated by the draftsmen of the then current federal standards. If the standards existing at any one point in time were given the broadest possible preemptive effect, the practical result would be to allow these new items to be sold without adequate regulation. Even assuming that a potentially dangerous new equipment option was somehow brought to the attention of the federal authorities prior to its introduction, it would take some time before an amendment or a new federal standard to cover such an item could be promulgated. As noted above, orders establishing or amending standards are subject to the notice and publication requirements of the rulemaking provisions of the Administrative Procedure Act. 5 U.S.C. § 553 (1964). In addition, the Act itself states that: Each order establishing a Federal motor vehicle safety standard shall specify the date such standard is to take effect which shall not be sooner than one hundred and eighty days * * , unless the Secretary finds, for good cause shown, that an earlier * * effective date is in the public interest, and publishes his reasons for such finding. 15 U.S.C. § 1392(c). It is difficult to predict whether these time restrictions on the effectiveness of new or amended standards could be circumvented in a particular case. However, it is sufficient to note that there is a substantial possibility that a federal response to a new equipment option would be delayed for several months at the very least. In the interim, it is conceivable that traffic accidents caused in whole or in part by the new item of equipment would occur were the states powerless to act. The states are better suited to act promptly in this field than is the federal government under the present regulatory scheme. First, as the present cases demonstrate, many states do have presale approval provisions or procedures which apply to some items of automotive equipment. Moreover, the states can act swiftly; in the instant cases, officials of Vermont and New York promptly conducted tests of Super Lite and concluded that it was a hazard to other drivers. Accordingly, they sought to bar it from the highways. It is reasonable to expect that if a number of states reacted to Super Lite, either affirmatively or negatively, it would soon come to the attention of the federal authorities. At that time, after a body of test data was developed, the Federal Highway Administration might well take action to regulate Super Lite specifically. It is of course possible that the states would disagree as to the merits of a particular item of equipment such as Super Lite. In Rhodes, the First Circuit noted that a manufacturer faced with such a dilemma had at least two alternatives for accommodating innovations in vehicle equipment. A manufacturer could, as Chrysler failed to do here, exhaust avenues of state law. Secondly, a manufacturer could seek to have an existing federal standard expanded to cover a new device. 15 U.S.C. § 1392(c). Rhodes, supra, 416 F.2d at 324. As we will explain more fully below, it seems to us that the most important consideration must be that a new equipment option which presents a potential safety hazard is a proper subject for the immediate exercise of the state police power. Given the present structure of the federal regulatory scheme and the Congressional purpose in passing the Act, the states are free to assume this role. III. Congressional Intent The Act and the standards issued under it must of course be interpreted in accordance with Congressional intent. The clearest possible expression of legislative purpose is provided in the first section of the Act itself: “the purpose of this chapter is to reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents.” 15 U.S.C. § 1381. Chrysler argues that Congress was primarily interested in establishing uniform regulation of the safety aspects of motor vehicles and items of motor vehicle equipment. It relies heavily on the report of the Senate Commerce Committee, which states: The centralized, mass production, high volume character of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but that they be uniform throughout the country. S.Rep. No. 1301, 89th Cong., 2d Sess., 1966, 2 U.S.Code Cong. & Admin.News 1966, p. 2720. However, this statement, quoted in Chrysler’s brief, is followed by these comments: At the same time, the committee believes that the States should be [left] free to adopt standards identical to the Federal standards, which apply only to the first sale of a new vehicle, so that the States may play a significant role in the vehicle safety field by applying and enforcing standards over the life of the car. Accordingly, State standards are preempted only if they differ from Federal standards applicable to a particular aspect of the vehicle or item of vehicle equipment * * * Id. Most important, this report was written before the crucial “aspect of performance” language was inserted into the preemption section. See Chrysler Corporation v. Rhodes, supra, 416 F.2d at 323, n. 5. This phrase first appeared in the House version of the bill, and it was adopted and expanded by the Conference Committee which altered the Senate bill before it was finally passed. Id.; see also Conf.Rep.No.1919, 89th Cong., 2d Sess., 1966, 2 U.S.Code Cong. & Admin.News 1966, pp. 2732-2733. We also note that the Senate Commerce Committee report contains language to the effect that the legislation was needed to promote traffic safety and to reduce accidents. S.Rep. No. 1301, supra, at 2709-2710. In discussing the promulgation of standards, the Senate Commerce Committee stated that it intended “that safety shall be the overriding consideration in the issuance of standards under this bill.” Id. at 2714. The Conference Report which accompanied the final version of the Senate bill describes the Act as one “to provide for a coordinated national safety program and establishment of safety standards for motor vehicles in interstate commerce to reduce accidents involving motor vehicles and to reduce the deaths and injuries occurring in such accidents * * .” Conf.Rep. No. 1919, supra, at 2731. Thus, although Chrysler stresses that Congress decreed uniformity, the clear expression of purpose in section 1381 and the other evidence of legislative intent indicate that the reduction of traffic accidents was the overriding concern of Congress. We think that these expressions of legislative purpose should govern our assessment of the preemptive effect of the Act and the standards issued under it. IV. Federal Preemption of State Regulation of Super Lite Our previous discussion of the preemption section of the Act makes it clear that we must examine Standard No. 108’s relation to Super Lite in the following manner. First, we must decide whether Standard No. 108 applies to Super Lite at all. Second, if we find that Standard No. 108 does cover Super Lite, we must determine the aspects of Super Lite’s performance to which -it applies. A. Standard No. 108’s Application to Super Lite In Rhodes, the First Circuit held that the issue which was determinative of the appeal was “whether there is an existing federal standard applicable to ‘Super Lite.’ ” Chrysler Corporation v. Rhodes, supra, 416 F.2d at 321. The court went on to hold that Standard No. 108 did not apply to Super Lite; in denying Chrysler’s petition for a rehearing, the court stated: At no point does standard no. 108 purport to cover a category of lighting equipment which would encompass ‘Super Lite.’ We therefore fail to see how the standard could be read to relate to any ‘aspect of performance’ of ‘Super Lite.’ Id., 416 F.2d at 325. We agree-with the First Circuit that “resort must be had to the specific requirements and categories of the standard in order to give meaning to the vaguely-worded purpose and scope provision.” Id. However, it seems to us that such an analysis must lead to the conclusion that Super Lite is covered by Standard No. 108, if only to a very limited extent. When the whole of Standard No. 108 is examined, it is apparent that its sole purpose is to assure that all new automobiles come equipped with certain items of lighting equipment which operate in accordance with the detailed performance requirements which are indicated. Chrysler is obviously correct that additional lighting — a category into which Super Lite fits — is mentioned, but the stated purpose of subsection S3.1.2 is to prevent any extra lighting equipment from interfering with the operation of the required lights. It would be overly restrictive to conclude that lights such as Super Lite are not covered. Thus, it becomes crucial to decide what aspect of Super Lite’s performance Standard No. 108 applies to. B. “The Same Aspect of Performance” Judges Leddy and Foley both held that the “aspect of performance” language in the preemption section of the Act should be construed broadly. In accordance with this view, Judge Leddy saw Standard No. 108 “as attempting to protect other users of the highway since in conditions of reduced visibility their safety on the roads may be jeopardized by the presence of a motor vehicle with a less than effective headlamp system.” Chrysler Corporation v. Malloy, supra, 294 F.Supp. at 531. It is apparent that in reaching their conclusions about the scope of the “aspect of performance” language and Standard No. 108, both district judges were impressed by Chrysler’s argument that Congress’ purpose was to create a uniform set of standards. See Chrysler Corporation v. Tofany, supra, at 974; see also Chrysler Corporation v. Malloy. supra, 294 F.Supp. at 531. Judges Leddy and Foley both decided that “aspect of performance” should be read broadly and that Standard No. 108, primarily through S3.1.2, did apply to the same aspect of performance of Chrysler’s Super Lite that the states sought to regulate. In our view, this analysis does not take proper account of the purpose of the Act as set forth in section 1381 and the other statements quoted above. Both the “aspect of performance” language of section 1392(d) and the coverage of Standard No. 108 should be construed with these indications of intent in mind. Approaching the question from this perspective, it would be anomalous to construe the preemption section and Standard No. 108 broadly when the practical effect of such construction would be to exclude many new items of motor vehicle equipment from prompt regulation at either the state or federal level. As the First Circuit stated in Rhodes: Acceptance of Chrysler’s position might well be contrary to the central purpose of the Act — the promotion of safety on the nation’s highways. To hold that the mere promulgation of a general purpose sought to be achieved by a federal safety standard would preempt all state regulation in a vaguely described area would result in a ‘no man’s’ land with respect to categories of equipment which the federal standard does not yet seek to regulate. On the other hand, should state regulation prove to be undesirable, preemption may be easily accomplished by the amendment of federal standards to extend their coverage. Chrysler Corporation v. Rhodes, supra, 416 F. 2d at 325. We recognize that the analysis presented in our Brother Friendly’s concurrence is not without logical appeal. However, it assumes that the “aspect of performance” concept is one which can be easily applied by all concerned parties — the federal authorities, the manufacturers, and state officials — in a wide variety of as-yet-unknown fact situations. The diversity of opinion produced by the instant litigation and by the Rhodes case, all of which involve but one basic factual pattern, counsels against such an assumption. Our narrow interpretation of the phrase “aspect of performance” and of the scope of the coverage of Standard No. 108 is thus a purposeful one; we think it clear that it was not the intent of Congress to foster in the states a hesitancy to act if there is an ambiguity as to the nature and extent of coverage of a particular federal standard. To reiterate, it seems to us that this is the wisest path to follow in view of the fact that many new items of automotive equipment are marketed each year and the Federal Motor Vehicle Safety Standards in effect during any such year were drafted without knowledge or consideration of the existence of such items. Chrysler argues that the preemption section itself supports the theory that uniformity of regulation was Congress’ primary objective. Section 1392(d), it is said, describes the one situation in which the states are permitted to impose standards stricter than those set by the minimum federal standards — that is, in the procurement of vehicles for their own use. To the contrary, we think that this portion of the preemption section, which allows not only states but also the federal and local governments to impose upon manufacturers safety standards higher than those set in the federal standards when buying cars for their own use, further undercuts the analysis of the district courts. This part of section 1392(d) means, for example, that the General Services Administration could require all manufacturers to include on all automobiles purchased by it for the federal government’s fleet a pair of dual headlamps instead of merely a pair of single headlamps — an arrangement which is permitted by Standard No. 108. See Standard No. 108, Table III. State and local governments are also free to impose any number of stricter safety standards for cars which they buy for their fleets. This provision appears to be an implicit rejection of the overriding importance of uniformity. V. Conclusion In light of these considerations, we conclude that the “aspect of performance” language in the preemption section of the Act must be construed narrowly. We concede, as the First Circuit was unwilling to do, that Standard No. 108 does cover Super Lite. But the coverage is limited severely by the terms of S3.1.2. This subsection of Standard No. 108 is so general that a practical construction of the phrase “impairs the effectiveness of the required equipment” means that an item such as Super Lite is covered only if it physically obstructs the light emitted by the required lamps or if it causes some type of electrical interference with the required lights. Thus, we hold that Standard No. 108 is concerned only with the effects, if any, which Super Lite has on the operation of the required lights so as to reduce or impair the vision of a driver operating a car equipped with Super Lite in darkness or some other condition of reduced visibility. Given the language and structure of Standard No. 108, we do not believe that it can or should be interpreted to apply to any effects which Super Lite may have on the drivers of other vehicles. Since this is the area in which both Vermont and New York have raised objections to the use of Super Lite, their attempts at regulation are not preempted. The result which we have reached is consistent with recent authority on the general question of federal preemption. As the First Circuit pointed out, “it is well-settled that where the state’s police power is involved, preemption will not be presumed.” Chrysler Corporation v. Rhodes, supra, 416 F.2d at 324 n. 8; Brotherhood of Locomotive Engineers v. Chicago R.I. & R.R. Co., 382 U.S. 423, 86 S.Ct. 594, 15 L. Ed.2d 501 (1966); Missouri Pacific R. Co. v. Norwood, 283 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010 (1931). Although the Engineers case involved a federal statute which contained no express preemption provision, the parties urging preemption contended, much as Chrysler does here, that the terms of the federal act involved in that case were inconsistent with the operation of the challenged state laws. We have already stated that the express purpose of the federal statute before us is the reduction of traffic accidents. Uniformity through national standards is of course desirable, but in these cases it is truly a secondary objective. What is perfectly safe on straight roads over the flat terrain of states such as Texas, Oklahoma, and Kansas may be very hazardous on hilly, winding roads in Vermont and New York. If traffic safety is furthered by a traditional type of state regulation under the police power, as we feel that it is here, a narrow construction of the preemptive effect of the federal Act and Standard No. 108 is required. See Chrysler Corporation v. Rhodes, supra, 416 F.2d at 323. In Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 141-142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), the Supreme Court stated: Whether a State may constitutionally reject commodities which a federal authority has certified marketable depends upon whether the state regulation ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress * . The test of whether both federal and state regulations may operate, or the state regulation must give way is whether both regulations can be enforced without impairing the federal superintendence of the field * . Applying this test to the cases before us, it is evident that regulation by Vermont and New York is not preempted. Even if the Federal Highway Administration’s failure to take any steps to restrict the sale of cars with Super Lite is construed as an “approval” of that option, the scope of such approval is necessarily limited to the aspect of Super Lite’s performance which Standard No. 108 covers. State regulation of a different aspect of performance does not conflict with the operation of the federal scheme; rather, it seems to have been contemplated as a contribution to the “execution of the full purposes and objectives of Congress.” Our conclusion in these cases is further strengthened by the fact that it is in accord with the position of the Federal Highway Administration, presented to us in an amicus brief filed by the United States, that Standard No. 108 was never intended to deal with the aspect of performance of a light such as Super Lite which the states seek to regulate. As the Supreme Court stated in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 276, 89 S.Ct. 518, 523, 21 L.Ed.2d 474 (1969): [W]hen construing an administrative regulation, ‘a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. * * [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ The Federal Highway Administration’s position is not clearly erroneous or inconsistent with either the purposes of the Act or of Standard No. 108. From what we have said, it should be clear that the agency’s interpretation coincides both with a common-sense reading of the relevant provisions and with Congressional intent. The judgments are reversed with directions to enter summary judgment in favor of the defendants in both cases. The judgment for the plaintiffs in Chrysler Corporation v. Malloy and the summary judgment for the plaintiffs in Chrysler Corporation v. Tofany are reversed. . The citation indicates where Standard No. 108 may presently be found. The Secretary of the Department of Transportation issued the original version of Standard No. 108 on January 31, Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_genresp1	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. 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. Michael J. PATRONE, Plaintiff-Appellee, v. HOWLAND LOCAL SCHOOLS BOARD OF EDUCATION et al., Defendants-Appellants. No. 71-1883. United States Court of Appeals, Sixth Circuit. Dec. 19, 1972. Robert T. Baker, Columbus, Ohio, John C. Burkholder, Means, Bichimer & Burkholder Co., Columbus, Ohio, David C. Comstock, Pfau, Comstock & Springer, Youngstown, Ohio, Raymond E. Schryver, Jr., Asst. Pros. Atty., Warren, Ohio, on briefs, for appellants. Alan Kretzer, Youngstown, Ohio, Eugene Green, Green, Schiavoni, Murphy & Haines, Youngstown, Ohio, on brief, for appellee. Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and CECIL, Senior Circuit Judge. PHILLIPS, Chief Judge. Michael J. Patrone, a nontenured school teacher in the Howland, Ohio, district, was employed for eight successive years under a series of one year certificates to teach industrial arts. He is not eligible for tenure under Ohio law because he has never qualified for a regular industrial arts teaching certificate. When his contract was not renewed for the 1970-71 school year, he filed this action under 42 U.S.C. § 1983, complaining that the Board of Education had refused his demands for a statement of the reasons for nonrenewal of his contract and had denied him an opportunity to be heard. Patrone does not assert in his complaint that the action of the Board of Education was caused by the exercise by him of freedom of speech or any other constitutional right. He contends that the due process clause of the Fourteenth Amendment guarantees him a statement of reasons and a hearing before the school board. The District Court granted partial summary judgment in favor of the teacher and ordered reinstatement with back pay. We reverse. The order of the District Court was based upon failure of the Board of Education to state a reason for nonrenewal of the contract and to grant a hearing. The District Court said that the recent decision of this court in Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767, rehearing denied, 409 U.S. 898, 93 S.Ct. 95, 34 L.Ed.2d 157, is not controlling “since plaintiff’s case rests on constitutional grounds.” The decision of the District Court is based upon a misinterpretation of Orr v. Trinter. Reversal is required not only by the decision of this court in that case, but also by the decision of the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548, and by the decisions of this court in Lukac v. Acocks, 6 Cir., 466 F.2d 577 (1972), Harp v. Clemens, 6 Cir., 464 F.2d 1028 (1972), and Crabtree v. Brennan, 6 Cir., 466 F.2d 480 (1972). On appeal Patrone argues that he had an expectancy of continuing employment, relying on Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570. That case involved a situation where “the policies and practices of the institution” rose to the level of implied tenure. Ohio has a tenure system to protect the rights of career teachers. There are two types of teaching contracts, limited and continuing service. § 3319.08 O.R.C. A teacher with temporary certificate, such as the one possessed by Patrone, may be employed only under a limited contract. § 3319.11 O.R.C. A teacher with a limited contract is entitled to reemployment unless notified to the contrary. § 3319.11 O.R.C. It is not disputed under the record in this case that Patrone was notified in writing in accordance with the statute that the Board did not intend to renew his contract. Furthermore, the Board’s affidavits state that Patrone’s 1969 certificate was conditioned upon his completing two courses of additional training; that the files of the Division of Certification of the Ohio Department of Education do not show that Patrone has submitted evidence of his completion of the two required courses; and that a fully certified teacher became available and was employed to teach industrial arts in the position formerly held by Patrone. Pat-rone does not assert that he completed the required courses of additional training, but states by affidavit that he received a temporary certificate for 1970-71. We find nothing in the record in this case that could be construed to establish an expectancy of continued employment as contemplated by Perry v. Sindermann, supra. Reversed and remanded with instructions to dismiss the complaint. . No allegation, to this effect is contained in the complaint. 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_initiate	C	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. FAIRMONT FOODS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 12680. United States Court of Appeals Fourth Circuit. Argued Jan. 10, 1969. Decided Feb. 28, 1969. Carl D. Hall, Tulsa, Okl. (John M. Keefer, and Hall & Sublett, Tulsa, Okl., on brief) for petitioner. Seth D. Rosen, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Paul J. Spielberg, Atty., N. L. R. B., on brief) for respondent. Before BOREMAN, WINTER and CRAVEN, Circuit Judges. PER CURIAM: This case is before the court upon petition of Fairmont Foods, Inc., (Fairmont) pursuant to section 10(f) of the National Labor Relations Act, as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) to review and set aside the order of the National Labor Relations Board issued against UtoteM of Oklahoma (the company), a wholly-owned subsidiary of Fairmont. This court has jurisdiction under section 10(e) and (f) of the Act since Fairmont does business within this judicial circuit. The Board found that the company violated section 8(a) (1) of the Act by, inter alia, coercive interrogation of employees as to union activities: threatening employees with loss of jobs if they selected a union; and proposing an independent contractor arrangement in an effort to prevent union organization. We find substantial evidence on the record as a whole to support the Board’s findings of section 8(a) (1) violations. In fact, before us, the company concedes the correctness of these findings. The Board found that the company violated section 8(a) (3) and (1) of the Act by discriminatorily discharging Jerry Dennis and Steven Fryar for their union activities. The company sought to justify the discharges because of a substantial shortage in inventory at a company store where Dennis and Fryar were the only employees. We have examined the record and reach the conclusion that the Board’s findings of discriminatory discharges are supported by substantial evidence and that the order of reinstatement of these two employees should be enforced. Next, the Board found that the company violated section 8(a) (5) and (1) of the Act, first, by refusing to bargain with the union which represented a majority of its employees in an appropriate unit and, second, by taking unilateral action affecting wages and other terms and conditions of employment when the company was under a duty to bargain with the union. This case is another in a series of cases arising in this circuit in which the Board order to bargain is based upon “authorization cards” signed by employees and not by reason of certification of the union as bargaining agent after a secret ballot election. Consistently, in several cases we have disapproved the Board’s orders to bargain based upon authorization cards. We are aware that on December 16, 1968, (393 U.S. 997, 89 S.Ct. 482, 21 L.Ed.2d 462) the Supreme Court granted review of this court’s decision in N. L. R. B. v. Gissel Packing Co., Inc. (398 F.2d 336). Counsel for the Board has requested that we defer further argument and final decision on the section 8(a) (5) portions of the instant case pending the Supreme Court’s decision in Gissel. The request is granted. However, the Board’s order in other respects will be enforced. Enforcement granted in part and consideration of other portions of Board’s order deferred. . The Board’s decision, and order are reported at 172 NLRB No. 21. . General Steel Products, Inc. v. N. L. R. B., 398 F.2d 339 (4 Cir. 1968) ; N. L. R. B. v. Heck’s, Inc., 398 F.2d 337 (4 Cir. 1968) ; N. L. R. B. v. Gissel Packing Co., Inc., 398 F.2d 336 (4 Cir. 1968) ; N. L. R. B. v. S. S. Logan Packing Company, 386 F.2d 562 (4 Cir. 1967) ; Crawford Manufacturing Co. v. N. L. R. B., 386 F.2d 367 (4 Cir. 1967). 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_circuit	E	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. J. T. ROSE, Former Collector of Internal Revenue, District of Georgia, Appellant, v. UNITY INVESTMENT COMPANY, Appellee. No. 8102. Circuit Court of Appeals, Fifth Circuit. Oct. 20, 1936. Helen R. Carloss and J. Louis Monarch, Sp. Assts. to Atty. Gen., and M. Neil Andrews, Asst. U. S. Atty., of Atlanta, Ga., for appellant. W. A. Sutherland, Elbert P. Tuttle, Joseph B. Brennan, Granger Hansell, and R. W. Crenshaw, all of Atlanta, Ga., for appellee. Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges. SIBLEY, Circuit Judge. This case by stipulation is controlled by the disposition made of J. T. Rose, Former Collector of Internal Revenue, District of Georgia, v. Little Investment Company (D. C.) 86 F.(2d) 50, this day decided. It is accordingly ordered that the judgment be affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_casetyp1_1-3-1	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 "criminal - federal offense". Abraham (Abe) BAKER, Individually, and d/b/a Simmonds Upholstering Company, Defendant, Appellant, v. SIMMONS COMPANY, Plaintiff, Appellee. No. 6137. United States Court of Appeals First Circuit. Dec. 26, 1963. James M. Malloy, Boston, Mass., with whom Ralph Warren Sullivan and Malloy, Sullivan & Sullivan, Boston, Mass., were on brief, for appellant. Francis A. Even, Chicago, Ill., with whom William E. Anderson, James J. Schumann and Anderson, Luedeka, Fitch, Even & Tabin, Chicago, Ill., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered March 19, 1963, awarding plaintiff-appellee, Simmons Company, the amount of $1,-094,779.94 damages and counsel fees in an action involving trade-mark infringement and unfair competition. Defendant-appellant, Abraham Baker, individually and doing business as Simmonds Upholstering Company, was found guilty in the United States District Court for the District of Massachusetts of trade-mark infringement in violation of the Lanham Act, 15 U.S.C. § 1114 (1958), and unfair competition. The Simmons Company, a leading manufacturer of furniture possessing a “sleep feature,” as well as a manufacturer of furniture for a variety of purposes and rooms, was found to be harmed by defendants’ use of the name “Simmonds” in the conduct of their business of upholstering and reupholstering furniture when use of such trade-name was likely to cause, and had caused, confusion with the plaintiff among ordinary purchasers. An injunction was issued against the defendants and the plaintiff was held entitled to damages and attorneys’ fees. Simmons Company v. Baker, 200 F.Supp. 149 (D.Mass. 1961). After this court affirmed the aforementioned judgment, Baker v. Simmons Company, 307 F.2d 458 (1st Cir. 1962), the district court referred plaintiff’s claim for damages to a Master “to hear the parties and their witnesses, and to report to the Court his findings and conclusions of law thereon on the question of damages.” The Master held five days of hearings during which time four witnesses testified concerning the activities and financial transactions of the defendants. On January 22, 1963 the Master filed his report. He found the defendants jointly liable to the plaintiff in the total sum of $475,473.47. The district court doubled the Master’s figure — an act of judicial discretion provided for in § 1117 of the Lanham Act — and included $143,833.00 counsel fees and expenses. Judgment was entered for the plaintiff in the amount of $1,094,779.94. The first four points raised by appellant can be quickly settled. (1) We find no merit in appellant’s argument that the award of damages should have been barred by laches and the Massachusetts statute of limitations. On the question of laches we defer to our prior opinion, Baker v. Simmons, supra, 307 F.2d at 466 n. 4 where that issue was negated. Also in that opinion we found defendants had rélied on a fake document in order to establish rights in the “Simmonds” name extending back to 1899 and had, in fact, succeeded in deceiving the Boston Better Business Bureau and the Superior Court of the State of Rhode Island. The Massachusetts statute sought to be invoked by appellant saves from its operation causes of action which are fraudulently concealed. Mass.G.L. Ch. 260 § 12. (2) It is complained that the Master’s disallowance of certain costs was improper. Here we are restrained by the principle that the findings of the Master are entitled to great weight and should not be disregarded unless clearly wrong. Parker v. Interstate Trust & Banking Co., 56 F.2d 792 (5th Cir. 1932). We find sufficient evidence to sustain the Master’s findings. (3) Nor was it improper for the Master to award damages on the basis of gross sales of defendants. While some of the goods sold by defendants did not compete with those sold by plaintiff, they were all sold under the name “Simmonds.” ‘‘[A] trade-mark infringer is liable as a trustee for profits accruing from its illegal acts, even though the owner of the mark was not doing business in the consuming market where the infringement occurred.” Blue Bell Co. v. Frontier Refining Co., 213 F.2d 354, 363 (10th Cir. 1954) and cases cited therein. See also Admiral Corporation v. Price Vacuum Stores, 141 F.Supp. 796 (E.D. Pa.1956). (4) Finally, there is more than sufficient authority for the allowance of counsel fees in Lanham Act actions where the defendant is found guilty of fraud and palming-off. Wolfe v. National Lead Company, 272 F.2d 867 (9th Cir. 1959); Keller Products v. Rubber Linings Corp., 213 F.2d 382 (7th Cir. 1954); Admiral Corp. v. Penco, Inc., 203 F.2d 517 (2d Cir. 1953). The fifth point raised by appellant contains more substance. The appellant contends that it was error for the Master to enlist ex parte the assistance of an independent accountant to furnish him with profit and loss statements for all the defendants. In his report the Master recited, inter alia, that one Ames, “a public accountant,” was called by defendants but that he discarded Ames’ testimony “as not being of probative value.” He further stated that the profit and loss statements introduced by the defendants and prepared by one Anderson, “a self-employed auditor,” were “incomplete” and that he discarded them “as being not too reliable.” “[I]n their place I caused an outstanding and competent firm of certified public accountants to furnish me with profit and loss statements prepared from the ledgers of the defendants which were also placed in evidence. I am adopting these latter profit and loss statements as being most reliable.” In a subsequent letter to the court, supplementing this report, the Master stated that he had employed “outside help” only after making “decisions as to which items in my mind, were dis-allowable. The accountants only, for my own purposes, diagnosed the figures which appeared in the books themselves, which were placed in evidence, and they only aided me in their proper allocations. I deem this procedure to be on the same basis as if one were to go to a dictionary for a definition or to any reference book for guidance.” This is not a statement that the Master had already “made all the determinations as to allocations of expenses and deductions” as the lower court stated in approving the report but only that he had decided upon general items or categories, and that he used the accountant to interpret the books for the express purpose of making the dollar and cent allocations therein. The Master’s conclusion in his report that he found his accountant’s profit and loss statements the most “reliable” ones seems a far cry from equating them with “a dictionary * * * definitions or * * * reference book.” Whatever “help” the accountant furnished, it went beyond this. We believe it apparent that the accountant served as an ordinary expert witness to interpret the books. Even if the books were clear, which quite evidently they were not, appellant now finds itself bound by whatever the accountant told the Master, without opportunity to cross-examine him either as to his qualifications, his methodology, and the extent of his examination of the books or of his understanding thereof, or as to his actual conclusions. It may be that a Master may himself call his own witness, but that he should call him in camera, and without right of cross-examination is, to say the least, a most irregular act. The Master’s unquestioned right to disregard any evidence which he thinks is of doubtful probative value, Aycrigg v. United States, 136 F.Supp. 244 (N.D. Cal.1954), does not enable him to substitute evidence of his own without following ordinary judicial procedures. Judgment will be entered vacating the judgment of the district court and remanding the case for further proceedings not inconsistent with this opinion. . Also defendants and found guilty were Simmonds Upholstering Co., Inc., and New England Upholstering Co., Inc., both of which were solely owned by Baker, and Simmonds Sales System, Inc., in which Baker held the controlling shares. . About forty percent of defendants’ gross sales could be considered as limited to the reupholstering field. The district court found that while defendant posed as a “reupholsterer,” more than sixty percent of his gross sales was derived from the practice of “restyling” in the process of alleged “reupholstering.” This “restyling,” the district court found, was actually a subterfuge under which defendant Baker sold his customers new furniture under the representation that it was their old furniture “restyled.” Simmons Company v. Baker, supra, 200 F.Supp. at 153. . By the rule of ejusdem generis it is assumed reference book to mean a book like a dictionary, containing matters, essentially undisputed, as to which one could properly take judicial notice. Of. 9 Wig-more, Evidence § 2484 (3d ed. 1940) “The trial judge * * * may consult any source of information or topics subject to judicial notice. * * * ” (Ital. author’s) . But see 5 Moore’s Federal Practice ¶ 53.06, at 2953 (2d ed. 1951). Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. BYRD v. UNITED STATES. No. 1839. Circuit Court of Appeals, Tenth Circuit. Oct. 9, 1939. Rehearing Denied Nov. 10, 1939. Hal M. Black, of Wichita, Kan. (H. F. Hudson, of Wichita, Kan., and Frank C. Wade, of Terre Haute, Ind., on the brief), for appellant. R. T. McCluggage, Asst. U. S. Atty., of Topeka, Kan. (Summerfield S. Alexander, U. S. Atty., of Topeka, Kan., Julius C. Martin, of Washington, D. C., Director, Bureau of War Risk Litigation, Wilbur C. Pickett, Sp. Asst, to Atty. Gen., and Fendall Marbury, of Washington, D. C., Atty., Department of Justice, on the brief), for the United States. Before .PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. PHILLIPS, Circuit Judge. This is an action on a policy of war risk insurance issued to Earl W. Owens. It was. brought by Anna Marguerite Thomison, as administratrix of the estate of Earl W. Owens, deceased, and in her individual capacity as beneficiary under the policy. While the acfion was pending Thomison died and it was revived in the name of C. M. Byrd, as administrator de bonis non of Owens’ estate and as administrator of Thomison’s estate. The petition contained two counts. In the first it was alleged that on March 29, 1918, Owens enlisted in the military service of the United States; that on April 8, 1918, he applied for and received a $10,000 policy of war risk insurance; that on or about June 1, 1918, while in the military service of the United States and while such policy was in full force and effect, due to disease of the mind and body, he became unable to follow any gainful occupation with reasonable regularity and became totally and permanently disabled; that he was discharged from the Army on June 23, 1918; as an insane person; that his disability continued until his death on October 22, 1934; that on October 24, 1921, he was awarded total and permanent disability benefits; that the accrued installments under the award were paid, and current installments were paid until December 22, 1922, when payments under the award were terminated; that on October 14, 1932, he filed a claim for insurance benefits with the Director General of the Bureau of War Risk Insurance; and that the claim was denied. The allegations of the first count were incorporated in the second'count by reference. In the latter count it was further alleged that premiums were paid on the policy from December 22, 1922, until and including the month of July, 192G Plaintiff sought recovery on the first count for 240 monthly installments of $57.-50 from June 1, 1918, less the 54 installments paid under the award; and in the event the court should find that Owens became totally and permanently disabled between December '22, 1922, and September 1, 1926, recovery in the • alternative on the second count for 240 monthly installments of $47.73, commencing with the inception of such total and permanent disability, and for the refund of premiums paid after such total and permanent disability arose. The United States filed a general denial. Trial by jury was waived and the cause tried to the court. Byrd introduced evidence to establish that Owens became totally and permanently disabled on or about June 1, 1918. The United States, over the objection of counsel for Byrd, introduced evidence to establish that the disability from which Owens suffered antedated his induction into the military service of the United States and the issuance of the policy. That was its principal defense. At the close of all the evidence, the government interposed a motion for a directed verdict which was overruled. The court thereupon made the following findings: “* * * the court * * * finds the issues generally in favor of the defendant and against the plaintiffs, and finds that the insured, Earl W. Owens, did not become permanently and totally disabled within the meaning of the law at any time while the policy of insurance sued upon herein was in effect through payment of premiums thereon.” Byrd did not by request for a declaration of law that he was entitled to judgment, motion for judgment, or other like motion, challenge the sufficiency of the evidence to support the findings of the trial court. On March 12, 1938, judgment was entered for the United States. The petition for appeal was filed April 27, 1938, and the appeal was allowed May 9, 1938. Under well-settled limitations governing the review on appeal in jury-waived cases, obtaining before the effective date of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the sufficiency of the evidence to support the findings and judgment on this record is not open to review. White v. United States, 10 Cir., 48 F.2d 178, 181. Whether it would be feasible and just to apply the new rules in the instant case we need hot determine because the judgment must be reversed on another ground. Under Section 875, 28 U.S.C.A., the rulings of the court in the progress of the trial in a jury-waived case if excepted to at the time and duly presented by a bill of exceptions may be reviewed upon appeal. The phrase “rulings of the court in the progress of the trial” embraces rulings on the admission and rejection of evidence. City of Key West v. Baer, 5 Cir., 66 F. 440, 443; White v. German Alliance Ins. Co., 1 Cir., 103 F. 260. It will be noted that in the special finding the court did not find that Owens was not totally and permanently disabled, but that he “did not become permanently and totally disabled within the meaning of the law at any time while the policy of insurance sued upon herein was in effect through payment of premiums thereon.” This finding could be predicated as well on the evidence introduced over the objection of Byrd to establish that Owens’ disability antedated his induction into the military service and the issuance of the policy as on the fact that it arose after the policy had lapsed. Hence, we think the question, was the defense that Owens’ disability antedated his induction into the military service and the issuance of the policy barred by the incontestable provision, is presented for review. Section 402 of Art. 4 of the Act of October 6, 1917, 40 Stat. 409, provided: “That the director, subject to the general direction of the Secretary of the Treasury, shall promptly determine upon and publish the full and exact terms and conditions of such contract of insurance.” Pursuant thereto, the Director on October 15, 1917, published Bulletin No. 1, which in part read as follows : “* * * if the insured became permanently or totally disabled before this policy was applied for, it shall, nevertheless, be effective as life insurance, but not against such disability.” Section 30 of the Act of August 9, 1921, 42 Stat. 157, reads as follows: “A new section is hereby added to Article IV of the War Risk Insurance Act to be known as section 411, and to read as follows: “‘Sec. 411. Subject to the provisions of section 29 of the War Risk Insurance Act and amendments thereto policies of insurance heretofore or hereafter issued in accordance with Article IV of the War Risk Insurance Act shall be incontestable after six months from date of issuance, or reinstateme at, except for fraud or nonpayment of premiums.’ ” Section 29, supra, 40 Stat. 609, read as follows: “That the discharge or dismissal of any person from the military or naval forces on the ground that he is an enemy alien, conscientious objector, or a deserter, or as guilty of mutiny, treason, spying, or any offense involving moral turpitude, or willful and persistent misconduct shall terminate any irsurance granted on the life of such person under the provisions of Article IV,. and shall bar all rights to any compensation under- Article III or any insurance under Article IV.” Section 307 of the World War Veterans’ Act 1924, 38 U.S.C.A. § 518, reads as follows : “Policies of insurance heretofore or hereafter issued shall be incontestable after the insurance has been in force six months from the date-of issuance or reinstatement, except for fraud or nonpayment of premiums and subject to the provisions of section 447 of this title. A letter mailed by the bureau to the insured at his last known address informing him of the invalidity of his insurance shall be deemed a contest within the meaning of this section. This section shall be deemed to be in effect as of April 6, 1917.” On November 1, 1922, the Veterans’ Bureau ruled that the defense of antecedent disability was barred by the provision of Section 411, supra. See case of William Shortell, 22 G.C. 3729. On August 1, 1925, the Veterans’ Bureau reaffirmed this ruling. See case of Harold A. Feiereisel, 34 G.C. 2004. We are advised by a memorandum filed herein by Honorable Frank T. Hines, Administrator of Veterans’ Affairs, that those rulings reflect the practice followed by the Veterans’ Administration until the decision of the Comptroller General in the case of Mabry W. Woodall, A-29723, 9 Comp.Gen. 291, January 16, 1930. See, also, Comptroller General’s decisions in case of Hallam Singer, C-6836, 7 Comp. Gen. 526, and the case of Alexander M. Sinclair, XC-213,333, 8 Comp.Gen. 101. Notwithstanding Section 518 was made retroactive to April 6, 1917, the courts and the Comptroller General on January 16, 193Q, ruled that total permanent disability antecedent to the issuance of the policy constituted a good defense to a claim for total and permanent disability and that the same was not barred by the incontestable provisions of Section 518. Congress, by the Act of July 3, 1930, 46 Stat. 1001, 38 U.S.C.A. § 518, amended Section 518 to read in part as follows: “All contracts or policies of insurance heretofore or hereafter issued, reinstated, of converted shall be incontestable from the date of issuance, reinstatement, or conversion, except for fraud, nonpayment of premiums, or on the ground that the applicant was not a member of the military or naval forces of the United States, and subject to the provisions of section 23 [section 447 of this title] * * * Provided further, That this section shall be deemed to be effective as of April 6, 1917, and applicable from that date to all contracts or policies of insurance.” The Senate Report on this amendment stated: “The purpose is to make all contracts or policies of insurance incontestable from date of issuance, reinstatement, or conversion, for all reasons except fraud, non-payment of premiums, or that the applicant was not a member of the military or naval forces of the United States. This incontestability would protect contracts * * * where the applicant was not in the required stale of health, or was permanently and totally disabled prior to the date of application, or for any other reasons except those specifically mentioned in the statute. It is appreciated that this is a broad provision, but it was felt that it was necessary in order to do justice to the veterans, * * * •and to overcome decisions of the Comptroller General which practically nullified the section as it now exists.” Nevertheless, the courts continue to hold that antecedent disability constituted a defense to a claim for total permanent disability benefits. But in United States v. Patryas, 303 U.S. 341, 58 S.Ct. 551, 553, 82 L.Ed. 883, the court held that the defense of antecedent disability was barred by the provisions of Section 518, supra, as amended. In the opinion the court said: “The War Risk Insurance Act must be considered in the light of its passage during war, while men and women were being called into war service. This requires recognition of its generous and liberal purpose to provide ‘greater protection for (soldiers, sailors and nurses) and their dependents.’ Its passage indicated Congress conclusively presumed that every person, who had successfully Undergone mental and physical examination for war service, was — when inducted into such service — insurable against death and total permanent disability. The act commanded that insurance against death and total permanent disability be granted, without medical examination, to every applicant who had previously been examined and accepted for war service. Congress manifestly intended by these sweeping provisions that policies should he granted without regard to the health of applicants and should be enforceable obligations against the government. Any other construction of this broad, wartime legislative grant to soldiers, sailors and nurses would take away the benefits Congress intended them to receive. The provisions of the War Risk Insurance Act are sufficiently comprehensive and inclusive to authorize its administrators to grant insurance covering past or future total permanent disability, if such action is found necessary to carry out its far reaching national plan and purposes. * * . “The conclusion is inescapable that Congress enacted the 1930 amendment in order to overcome the effect of the above rulings of thie courts and the Comptroller General, and with the. intention to sustain the Bureau’s previous administrative interpretation a ad practice under the incontestable provision. “To resist payment of this veteran’s insurance policy on the ground that he was totally and permanently disabled prior to the issue of the policy is to ‘contest’ payment within the generally accepted meaning ■ of the word and violates the ‘incontestable’ provision. The purchaser of a policy contract containing a provision that the insurer waives its right to contest except for fraud, nonpayment of premiums, and lack of military or naval service is entitled to rely on the plain terms and inducements of the provision which limits the grounds for contest of liability to those specifically reserved. The incontestable provision here means that a claim of a veteran whose death or total permanent disability is established shall not be contested except for 1'raud, nonpayment of premiums, or on the ground that the insured had not really been a member of the war forces of the nation or because he was included in Title 38, U.S.C. § .447, 38 U.S.C.A. § 447. .Congress evidently believed these exceptions afforded the government ample protection against impositions or unjust claims and intended to limit the right to contest these policies to the specific grounds reserved in the exceptions.” It is true, the policy involved in the Patryas case was a converted policy and the court adverted to the fact that the converted policy did not as did the term policies expressly limit liability to prospective total permanent disability, and for that reason the case is not controlling here. Nevertheless, the implications of language used in the opinion strongly support the conclusion here reached. This being an action on a term policy the question is, Does Section 518, as amended, bar a contest on the ground that the risk was excluded by Bulletin No. 1 from the coverage of the policy? An analogous question has arisen in a number of cases involving commercial insurance policies containing incontestable clauses and provisions excluding death from suicide from the coverage of the policy. The decisions are in sharp conflict. In view of this sharp conflict in the decisions as to the effect of an incontestable clause, resort to the language alone of Section 518, as amended, leaves the intent and purpose of Congress uncertain, but we think a consideration of the Senate report and the circumstances under which the amendment was adopted removes that uncertainty. Clearly, the amendment is not limited to converted or reinstated policies. The amendment reads, “All contracts or policies of insurance heretofore or hereafter issued, reinstated, or converted shall be incontestable from the date of issuance, reinstatement, or conversion,” except upon the'specifically enumerated grounds, and it is expressly made retroactive to April 6, 1917. The enumerated grounds of contest open to the United States are fraud, nonpayment of premiums, the fact that the applicant was not a member of the military or naval forces of the United States, and those specified in Section 23, World War Veterans’ Act, 1924, 38 U.S.C.A. § 447. In the Senate report it was stated that the purpose of the amendment was “to make all contracts or policies of insurance incontestable from date of issuance” (italics ours) except for the grounds enumerated in the section and in Section 447. It was further stated that “This incontestability would protect contracts * * where the applicant * * * was permanently and totally disabled prior to the date of application.” The amendment and the report indicate no intention to make a distinction between original term policies and reinstated or converted policies. They manifest no intention to limit the bar of the defense of antecedent disability to reinstated and converted policies. Reinstatement and. conversion are privileges accorded the insured. The original term’policies were issued in recognition of a duty to those who entered the service and to effectuate a generous and liberal purpose to provide greater protection for them and their dependents. United States v. Patryas, 303 U.S. 341, 343, 58. S.Ct. 551, 82 L.Ed. 883; Act of October 6, 1917, § 400, 40 Stat. 409. Those who entered the service underwent mental and physical examinations for war service. The converted policies were issued without medical examination. See Act of October 6, 1917, § 404, 40 Stat. 398, 410. It seems to us unreasonable and unjust to bar the defense of antecedent disability as to those who hold converted policies and leave it open as against those who received their term policies after undergoing satisfactorily a test of their mental and physical fitness for war service. The fact that converted policies do not by their terms eliminate antecedent disability from the risk is not, in our judgment, a manifestation of an intention to grant a more liberal contract to those who converted, but a recognition that the defense of antecedent disability had been barred by the provisions of Section 518. We conclude that Congress by the amendment of July 3, 1930, Section 518, supra, as amended, intended to overcome the decision of the Comptroller General in the Woodall case and the decisions of the courts therein adverted to, to restore the practice which obtained in the Veterans’ Administration prior to the Woodall decision, and to bar the defense of antecedent disability with respect to term policies as well as to reinstated and converted policies. It follows that the defense of antecedent disability was barred by Section 518, as amended, and that the court erred in admitting evidence to establish that defense. The judgment is reversed and the cause remanded with instructions to grant Byrd a new trial. ln Jordan v. United States, 9 Cir., 36 F.2d 43, 73 A.L.R. 312, decided November 12, 1929, the court held that a term policy did not cover total permanent disability which antedated the issuance of the policy, and that the incontestable provision of Section 518 was inapplicable to policies which matured within the six months period. In Anderson v. United States, 9 Cir., 36 F.2d 45, decided November 18, 1929, the court held that a term policy did not cover totsl permanent disability antedating the issuance of the policy. See, also, United States v.. Golden, 10 Cir., 34 F.2d 367. In the case of Mabry W. Woodall, 9 Dec. of Comp.Gen. 291, 295, the Comptroller General, after citing the above cases, held: “These decisions not only sustain the views of this office, but go farther and place no time limitation on the Veterans’ Bureau within which there may be determined that the insured was in fact permanently and totally disabled when originally applying for insurance or applying for reinstatement and/or conversion thereof. There has not been overlooked the decision of Jensen v.-United States [D.C.], 29 F.2d 951, which was reversed November 12, 1929, by the Circuit Court of Appeals, 9 Cir., 36 F.2d 47. “Accordingly, the rule may be stated that where the Veterans’ Bureau has heretofore established or may hereafter establish the condition of permanent total disability at or prior to date of original application for insurance, or application for reinstatement and/or conversion of insurance, by a rating made at any time prior to the first payment of insurance under the policy, the insurance should be considered as invalid and no payments made thereunder, leaving the parties in interest to their recourse in the United States courts as provided by statute.” In Stavros v. United States, D.O. Wash., 3 F.Supp. 213, decided June 27, 1932, the court held that a person totally and permanently disabled before entry into military service was not entititled to automatic war risk insurance. In the following cases it was held that Section 518, as amended, did not bar the defense to an action on a term policy that the total permanent disability antedated the issuance of the policy: Hicks v. United States, 4 Cir., 65 F.2d 517, 520, decided June 15, 1933; United States v. Kaminsky, 5 Cir., 64 F.2d 735, 737, decided April 20, 1933; Davis v. United States, D.C.Va., 57 F.2d 871, decided March 28, 1932; Boulger v. United States, D.C.Mass., 60 F.2d 560, decided May 17, 1932; Mason v. United States, 8 Cir., 75 F.2d 54, rehearing denied February 6, 1935; Schmidt v. United States, 8 Cir., 63 F.2d 390, decided January 19, 1933; Nall v. United States, D.C.Miss., 8 F.Supp. 69, decided September 12, 1934. See, also, United States v. Mathis, 10 Cir., 84 F.2d 451, decided June 16, 1936. In United States v. Dupire, 8 Cir., 101., 101 F.2d 945, decided February 21, 1939, it was held that the defense that the total permanent disability antedated reinstatement was barred by Section 538, as amended. See, also, United States v. Chandler, 5 Cir., 77 F.2d 452, decided May 8, 1935. In United States v. Anders, 9 Cir., 88 F.2d 509, decided March 8, 1937, the court held in an action on a reinstated policy that the policy did not cover total permanent disability which arose prior to reinstatement. In United States v. McIver, 4 Cir., 77 F.2d 208, decided April 22, 1935, and United States v. Stevens, 8 Cir., 64 F.2d 853, decided April 3, 1933, the court held that total permanent disability at the time of reinstatement barred recovery on a reinstated policy. Jordan v. United States, 9 Cir., 36 F.2d 43, 73 A.L.R. 312; United States v. Golden, 10 Cir., 34 F.2d 367. In tho following eases the court held that the incontestable provision was a bar to the defense: Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L.R.A.1918D, 860; Royal Circle v. Achterrath, 204 Ill. 549, 68 N.E. 492, 63 L.R.A. 452, 98 Am.St.Rep. 224; Mutual Protective League v. McKee, 122 Ill. App. 376, affirmed on other grounds, 223 Ill. 364, 79 N.E. 25; Seymour v. Mutual Protective League,. 155 Ill. App. 21; Goodwin v. Provident Sav. Life Assur. Ass’n, 97 Iowa 226, 66 N.W.157, 32 L.R.A. 473, 59 Am.St.Rep. 411; Supreme Court of Honor v. Updegraff, 68 Kan. 474, 75 P. 477, 1 Ann.Cas. 309; Mareck v. Mutual Reserve Fund Life Ass’n, 62 Minn. 39, 64 N.W. 68, 54 Am. St.Rep. 613; Simpson v. Life Ins. Co., 115 N.C. 393, 20 S.E. 517; Mutual Reserve Fund Life Ass’n v. Payne, Tex. Civ.App., 32 S.W. 1063. In the following cases it was held that. the defense was not barred by the incontestable clause: Mutual L. Ins. Co. of New York v. Kelly, 8 Cir., 114 F. 268; Hearin v. Standard L. Ins. Co., D.C. Ark., 8 F.2d 202; Mack v. Connecticut Gen. L. Ins. Co., 8 Cir., 12 F.2d 416; North American Union v. Trenner, 138 Ill.App. 586; Myers v. Liberty L. Ins. Co., 124 Kan. 191, 257 P. 933, 55 A.L.R. 542; Stean v. Occidental Life Ins. Co., 24 N.M. 346, 171 P. 786; Woodbery v. New York Life Ins. Co., 129 Misc. 365, 221 N.Y.S. 357;. Starck v. Union Cent. L. Ins. Co., 134 Pa. 45, 19 A. 703, 7 L.R.A. 576, 19 Am.St.Rep. 674; Hall v. Mutual Reserve Fund Life Ass’n, 19 Pa.Super. 31; Childress v. Fraternal Union, 113 Tenn. 252, 82 S.W. 832; Scales v. Jefferson Standard L. Ins. Co., 155 Tenn. 412, 295 S.W. 58, 55 A.L.R. 537; Howard v. Missouri State L. Ins. Co., Tex.Civ.App., 289 S.W. 114; Ferrand v. New York Life Ins. Co., 8 Cir., 69 F.2d 159. See, also, Field v. Western Life Ind. Co., Tex.Civ.App., 227 S. W. 530; Supreme Lodge, K. P., v. Overton, 203 Ala. 193, 82 So. 443, 16 A.L.R. 649; Sun Life Ins. Co. v. Taylor, 108 Ky. 408, 56 S.W. 668, 94 Am.St.Rep. 383; Scarborough v. American Nat. Ins. Co., 171 N.C. 353, 88 S.E. 482, L.R.A. 1918A, 896, Ann.Cas.1917D, 1181; Col-, lins v. Metropolitan Life Ins. Co., 27 Pa. Super. 353. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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. BROWN SHOE COMPANY, Inc., Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. No. 17336. United States Court of Appeals Eighth Circuit. Dec. 8, 1964. Robert H. McRoberts, Gaylord C. Burke, and Edwin S. Taylor, of Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., for petitioner. Thomas F. Howder and Gerald J. Thain, Attys., James Mcl. Henderson, Gen. Counsel, and J. B. Truly, Asst. Gen. Counsel, Federal Trade Commission, Washington, D. C., for respondent. Before VOGEL, MATTHES and RIDGE, Circuit Judges. VOGEL, Circuit Judge. This case arises from a petition to review an order of the Federal Trade Commission directed against Brown Shoe Company, Inc. The case was originally brought by the Commission under § 5 of the Federal Trade Commission Act which provides: “§ 5(a) (1) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are declared unlawful.” 66 Stat. 632 (1952), 15 U.S.C.A. § 45 (a) (1) (1958). The Commission’s complaint, issued October 13, 1959, alleged that Brown Shoe Company, Inc., a manufacturer and distributor of shoes, violated § 5 through the operation of its franchise stores program and by fixing the retail prices at which its products were sold by dealers. Count 1 alleged that Brown “entered into contracts or franchises with a substantial number of its independent retail shoe store operator customers which required said customers to restrict their purchases of shoes for resale to the Brown lines and which prohibit them from purchasing, stocking or reselling shoes manufactured by competitors of Brown”. It charged that dealers having this relationship with Brown are termed “Brown Franchise Stores” and are afforded special treatment and given certain benefits not granted other customers. Among the benefits or services listed in the Commission’s complaint were “free signs, business forms and accounting assistance participation in lower cost group fire, public liability, robbery, and life insurance policies; and special, below list prices on U. S. Rubber Company canvas and waterproof footwear”. In return for these services, the complaint charged that franchise dealers must “concentrate” their purchases of shoes upon “the grades and price lines” of shoes manufactured and sold by Brown. It further charged that such dealers must “refrain from stocking and selling shoes of competitors” and that dealers who violate their franchise agreement by doing so are dropped from the program and are deprived of the benefits available thereunder. The Commission alleged that the “purpose, intent or effect” of such practices on the part of Brown was “substantially to lessen, hinder, restrain and suppress competition” in the distribution of shoes in interstate commerce and in general to “foreclose” or “exclude” competitors from a “substantial share” of the retail dealer market, thereby further enhancing the already powerful competitive position of Brown in the shoe industry. Count 2 of the Commission’s complaint charged petitioner with resale price fixing in forcing or requiring its retail dealers to “agree to maintain arbitrary, noncompetitive resale consumer prices fixed and promulgated by Brown”. In connection with Count 2, the complaint alleged that petitioner “regularly publishes and distributes” to its customers “price lists or catalog lists” containing “the consumer prices to be observed” by them and that petitioner “frequently publishes” these prices in “full page advertisements in magazines having national circulation”. The complaint charged that through its representatives and officials Brown “maintains continuous pressure” upon its dealers “to insure that they do not depart from or sell below the minimum retail prices” established. It charged that non-adherents to these prices “are immediately contacted by Brown representatives” to insure compliance by “persuasion” if possible but “if that fails, to threaten and inform” such dealers that petitioner “will discontinue doing business” with them. The acts and practices of petitioner set forth in both counts of the complaint were alleged to constitute unfair methods of competition and unfair acts and practices in commerce within the intent and meaning of § 5 of the Federal Trade Commission Act. Brown, through its answer, generally denied the charges in the complaint. With reference to Count 1, however, Brown admitted entering into “contracts or franchises” with approximately 259 retail dealers. In addition, it declared that there were approximately 423 dealers operating on a “Brown Franchise Program”' who had not executed such written agreements. The franchise agreement in question admittedly contained a provision stating that in return for the services and benefits described, the franchise dealers must “concentrate” their business upon products manufactured by Brown. Brown admitted that the operators of such Brown franchise stores “in individually varying degrees” accepted benefits and performed the obligations contained in such franchise agreements implicit in such program. It further admitted that in general the enumerated services and benefits are not available to those dealers “who are dropped or voluntarily withdraw” from the program. In answer to Count 2, petitioner admitted only that it “regularly distributes to its retail shoe customers price lists or catalog sheets, certain of which contain suggested retail selling prices” and that “on occasions it publishes suggested retail selling prices in full page advertisements in magazines having national circulation”. Following extensive hearings in St. Louis, Missouri; Milwaukee, Wisconsin; Dallas, Texas; Washington, D. C.; Los Angeles and San Francisco, California; and Portland, Oregon, the Hearing Examiner issued an initial decision in which he found that the charges set forth in both counts of the complaint were sustained by the evidence, and entered an order requiring Brown to cease and desist from these practices. Brown took exception to the Examiner’s findings and petitioned the Commission for a review. Its petition was granted. After hearing the matter on briefs and oral arguments, the Commission modified a portion of the Examiner’s decision to conform to its own views. As thus modified and as supplemented by its own opinion, the initial decision of the Hearing Examiner was adopted. In modifying the initial decision, the Commission deleted therefrom the Examiner’s findings as to the substantial effect of the Brown franchise program on competition and substituted therefor its own findings. It held that it was not necessary to examine the probable effect of petitioner’s program upon competition in order to find that the program was an unfair trade practice violative of § 5 of the Federal Trade Commission Act, but that in any event, on the authority of Brown Shoe Co., Inc. v. United States, 1962, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510, the prospective competitive impact of the program was such as to render it unlawful. The Commission stated: “We have found that Brown’s operation of the franchise plan constitutes an unfair trade practice vi-olative of Section 5 of the Federal Trade Commission Act. We conclude, therefore, that Count 1 of the complaint has been sustained. Moreover, an examination of the market facts of the shoe industry, as developed in this record in the light of the Brown Shoe decision, persuades us that the prospective competitive impact of the franchise program is such that the standards of illegality under Section 3 and Section 7 of the Clayton Act, as amended, have been met.” On May 1, 1963, Brown filed its petition to review the order of the Commission on the grounds that such order and the findings and opinion upon which it was based are arbitrary and capricious, not supported by any substantial evidence, not in accordance with law, and lacking in due process. Petitioner has asked to have the order set aside and the complaint dismissed. The findings of the Commission and the Examiner may be summarized as follows: Petitioner, Brown Shoe Company, Inc., is a New York corporation with its office and principal place of business in St. Louis County, Missouri. It is primarily engaged in the manufacture and distribution of nationally advertised medium-priced men’s, women’s and children’s shoes. Brown and its subsidiaries operate over 50 manufacturing, supply and service plants located throughout the United States and Canada. In 1959, this complex ranked third in shoe pairage production among the country’s approximately 900 to 1,000 shoe manufacturers. These manufacturers produced 632 million pairs of leather shoes in 1959. The shoes manufactured by Brown and its subsidiaries are marketed on a nation-wide basis, primarily through sales at wholesale to independent retail customers, including individual shoe stores, chain stores, department stores and specialty stores. Apart from its subsidiaries, Brown was selling to approximately 6,000 retail customers at the time the complaint was issued. Brown was second in dollar sales and third in pairage production in the shoe industry in 1958 and 1959. Although total dollar sales for the fiscal year ending October 31, 1959, were $276,549,164,® this figure included sales at wholesale and at retail by Brown and its subsidiaries and included inter-company sales as well. Brown’s sales at wholesale for the same period to its 6,000 independent retail shoe store customers were $111,-292,872. That same year (1959) the top 70 shoe manufacturing firms in the industry had total dollar sales of 1.8 billion dollars. Brown maintains an extensive distribution system. It is organized into separate selling divisions through which it markets its various brands of shoes to its retail customers. The division of Brown which is of paramount importance under Count 1 of the complaint is the franchise stores division. The personnel of this division include a manager, two assistants and 16 salaried “field men” who travel in assigned territories servicing various franchise accounts. The franchise division manager is responsible to the vice president in charge of sales. Petitioner’s franchise stores program has been in operation for approximately 30 years. More recently the number of dealers under this program has increased. In November 1959 there were 682 retailers in the system. By October 1961, at the conclusion of reception of evidence herein, the number of franchisees had increased to about 767. Petitioner makes no distinction between dealers having written franchise agreements with it and those who do not insofar as any benefits or obligations under the program are concerned. In November 1957 petitioner had written franchise agreements with approximately 260 dealers. The Brown franchise agreement requires that the retail dealer — in return for various enumerated services and benefits — must: “ * * * concentrate my business within the grades and price lines of shoes representing Brown Shoe Company Franchises of the Brown Division and will have no lines conflicting with Brown Division Brands of the Brown Shoe Company.” Several valuable benefits and services are aiforded franchise holders. Specifically mentioned in the franchise agreement are: The services of field representatives ; the use of merchandising forms and records; retail sales training programs; accounting system installation; group purchasing of insurance, rubber footwear and display materials; and the opportunity to participate in national and regional sales meetings. The Commission found that the “prime motivation” of dealers in joining and continuing on the franchise program was the above-described benefits and services available to them. The Commission recognized that not every dealer utilized each benefit, but found that “collectively” these benefits achieved the intended effect; viz., attracting selected retailers to the program and inducing them to comply with its restrictive requirements. The Commission found that these requirements as set forth in the franchise agreement were applicable to “signer and non-signer franchise holders alike”; that this agreement not only “on its face” restricted competitive purchasing of franchise dealers, but that petitioner’s field men actively policed dealers to insure their concentration upon Brown lines and elimination of competing products; that franchise dealers who persisted in carrying conflicting lines were separated from the program. The Commission found that although franchise dealers theoretically may be free to quit the program and return to their former status, the record on the whole showed that the relationship between Brown and its franchise dealers was “reasonably stable”. The Commission likewise took into account evidence showing that franchise dealers sometimes handled certain types and quantities of competitive shoes. It held that such evidence did not vitiate its finding that competitors were foreclosed from selling to franchise dealers in substantial amounts and that other evidence of record established this. (The record indicates that Brown franchise dealers purchase approximately 25% of their shoes from other manufacturers. A part of this 25% was made up of lines in competition with Brown.) In sum, the Commission held that petitioner’s operation of its franchise program, which it found effectively foreclosed competitors from making substantial sales to a significant number of desirable retail outlets, constituted an unfair trade practice in violation of § 5 of the Federal Trade Commission Act. The Commission further found that petitioner’s practice of conditioning the above-described benefits of membership in the program upon adherence to the restrictive terms of the franchise agreement was “akin to the operation of tying clauses generally held as inherently anti-competitive”. In addition, the Commission, after examining the various economic factors in the shoe industry, was persuaded “ * * * that the prospective competitive impact of the franchise program is such that the standards of illegality under Section 3 and Section 7 of the Clayton Act, as amended, have been met.” As to Count 2 of the complaint, the Commission found that petitioner entered into agreements with its retail dealers that its suggested retail prices would be followed and that it attempted to enforce and had in fact effectuated compliance with such agreements. The Commission found that Brown communicates the prices it establishes in “various ways”. Most of Brown’s selling divisions furnish their salesmen and customers with price lists containing a retail price “suggested” by petitioner. The Commission further found that advertising is another method used by petitioner to establish retail prices. On the whole, the Commission’s evidence relating to Count 2 of the complaint concerns transactions with two of Brown’s franchise stores and their pricing policies. When this case was first instituted on October 13, 1959, it obviously was the theory of the Federal Trade Commission that Brown’s franchise stores program was an unlawful exclusive dealing arrangement violative of § 5 of the Act. It was so found by the Hearing Examiner and decided by him on that basis. The Commission struck such findings of the Examiner, stating: “In short, from our review of the record, we find that respondent’s operation of the franchise plan, which has effectively foreclosed its competitors from selling to a significant number of retail shoe stores, constitutes an unfair trade practice under Section 5 of the Federal Trade Commission Act. Respondent’s practice of conditioning the benefits of membership in the plan to adherence to the restrictive terms of the franchise agreement for the purpose of foreclosing other manufacturers from selling to its franchisees is akin to the operation of tying clauses generally held as inherently anti-competitive.” A proceeding under § 5 of the Federal Trade Commission Act is not one brought before the Commission by one party against another. It is instituted by the Commission itself and may be commenced whenever the Commission has reason to believe that “unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce * * * ” have been used by the party against whom it proceeds. “ * * * The object of the Trade Commission Act was to stop in their incipiency those methods of competition which fall within the meaning of the word ‘unfair.’ ‘The great purpose of both statutes was to advance the public interest by securing fair opportunity for the play of the contending forces ordinarily engendered by an honest desire for gain.’ Federal Trade Comm. v. Sinclair Co., 261 U.S. 468, 476, 43 S.Ct. 450, 454, 67 L.Ed. 746. All three statutes [the Sherman Anti-Trust Act, the Clayton Act and the Federal Trade Commission Act] seek to protect the public from abuses arising in the course of competitive interstate and foreign trade.” Federal Trade Commission v. Raladam Co., 1931, 283 U.S. 643, 647, 51 S.Ct. 587, 589-590, 75 L.Ed. 1324. Our primary question is whether there was adequate evidentiary basis for the Commission’s finding that the Brown franchise program was an unfair method of competition and accordingly unlawful under § 5 of the Act. The Act itself provides, 15 U.S.C.A. § 45(c) "* * * [t]he findings of the Commission as to the facts, if supported by evidence, shall be conclusive.” The use of identical language with reference to the findings of the National Labor Relations Board under the Wagner Act caused the Supreme Court to say in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 464-465, 95 L.Ed. 456: “ * * * The substantiality of evidence must take into account whatever in the record fairly detracts from its weight. This is clearly the significance of the requirement in both statutes that courts consider the whole record. * * * “To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor was it intended to negative the function of the Labor Board as one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” With reference to what is “unfair” within the purview of § 5 of the Act, the Supreme Court has said in Federal Trade Commission v. Gratz, 1920, 253 U.S. 421, 427, 40 S.Ct. 572, 575, 64 L.Ed. 993: “The words ‘unfair method of competition’ are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as a matter of law what they include. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals because characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly. The act was certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade.” (Emphasis supplied.) And in Federal Trade Commission v. Ral-adam Co., supra, 1931, 283 U.S. 643, 648, 51 S.Ct. 587, 75 L.Ed. 1324: “* * * It [the words ‘unfair methods of competition’] belongs to that class of phrases which does not admit of precise definition, but the meaning and application of which must be arrived at by what this court elsewhere has called ‘the gradual process of judicial inclusion and exclusion.’ Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. The question is one for the final determination of the courts and not of the Commission. Federal Trade Comm. v. Gratz, 253 U.S. 421, 427, 40 S.Ct. 572, 64 L.Ed. 993; Federal Trade Comm. v. Beech-Nut Co., supra, p. 453 of 257 U.S., 42 S.Ct. 150. Our question here is whether Brown’s program could possibly be classified as an “unfair method of competition”. What Brown did in the operation of its Brown franchise stores program it had been doing for at least thirty years prior to the institution of this proceeding. Similar programs are operated by its competitors, such as International Shoe Company’s Merchants Service Plan and General Shoe Company’s General Shoes Friendly Franchise Store Plan. No court has gone so far as to hold like programs or methods of doing business unlawful under § 5 of the Federal Trade Commission Act and such programs or sales methods have never heretofore been “ * * * regarded as opposed to good morals because characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” 253 U.S. at page 427, 40 S.Ct. at page 575. The Commission would liken Brown’s program to “tying arrangements”, relying on Northern Pacific Railway Co. v. United States, 1958, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545, and other cases. Northern Pacific is factually distinguishable. The railway company there possessed a monopoly of some 40,000,000 acres of land along the route of its railroad line from Lake Superior to Puget Sound. The company tied the sale or lease of its land to the use of its hauling services by inserting “preferential routing” clauses in its contracts for sale and leases which compelled the buyer or lessee to ship over Northern Pacific’s lines all commodities produced or manufactured on the land provided its rates were equal to those of competing carriers. The railway used its great economic power provided by the land to enforce the use of its transportation facilities. Analyzing what Brown Shoe Company did in the instant case insofar as its Brown franchise stores program is concerned, we find: 1. It made agreements, some in writing but more orally, in which it agreed to furnish certain services to those of its customers who would “concentrate” their business on shoes manufactured by Brown. 2. The services were free of charge with the exception of the fact that Brown’s four seasonal window display props for two windows cost $500 to $600 per year and were available as well to •other independent retail shoe store customers of Brown. 3. Brown did not have a monopoly on the services which constituted the tying product nor did it have a monopoly on the tied product — shoes. 4. Brown’s competitors also furnished services in connection with the sale •of their shoes. 5. Retailers were free to abandon the .arrangement at any time they saw it to their advantage so to do. 6. Most of the services were available to customers who did not join in the Brown franchise program. The Commission draws a parallel between the effect of the sale or lease by the railroad of its land in Northern Pacific with Brown’s giving its services to the participants of Brown’s franchise .stores program, thus forcing them to "buy Brown’s shoes. We find no comparability between Brown’s situation and that which •existed in Northern Pacific. The Supreme Court, in holding the tying arrangement in Northern Pacific as being unlawful per se, stated at page 5 of 356 U.S.; at page 518-519 of 78 S.Ct.: “ * * * Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are price fixing, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 838, 84 L.Ed. 1129; division of markets, United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, 46 L.R.A. 122, affirmed 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; group boycotts, Fashion Originators’ Guild' of America v. Federal Trade Comm., 312 U.S. 457, 668, 61 S.Ct. 703, 85 L.Ed. 949; and tying arrangements, International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. “For our purposes a tying arrangement may be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Where such conditions are successfully exacted competition on the merits with respect to the tied product is inevitably curbed. Indeed ‘tying agreements serve hardly any purpose beyond the suppression of competition.’ Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 305-306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371. They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products. For these reasons ‘tying agreements fare harshly under the laws forbidding restraints of trade.’ Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 606, 73 S.Ct. 872, 879, 97 L.Ed. 1277. They are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a ‘not insubstantial’ amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20. Cf. United States v. Paramount Pictures, 334 U.S. 131, 156-159, 68 S.Ct. 915, 928-929, 92 L.Ed. 1260; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236. Of course where the seller has no control or dominance over the tying product [franchise services] so that it does not represent an effectual weapon to pressure buyers into taking the tied item [s/ioes] any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself.” (Emphasis supplied.) Holding at page 7 of 356 U.S., at page 519 of 78 S.Ct., that “ * * * un¿[iSpUted facts established beyond any genuine question that the defendant possessed substantial economic power by virtue of its extensive land holdings which it used as leverage to induce large numbers of purchasers and lessees to give it preference, to the exclusion of its competitors, in carrying goods or produce from the land transferred to them. Nor can there be any real doubt that a ‘not insubstantial’ amount of interstate commerce was and is affected by these restrictive provisions.” the court goes on to say at page 11 of 356 U.S., at page 521 of 78 S.Ct.: “ ■» x x fhg vjce 0f tying arrangements lies in the use of economic power in one market to restrict competition on the merits in another, regardless of the source from which the power is derived and whether the power takes the form of a monopoly or not.” While it is clear that a “not insubstantial” amount of interstate commerce is involved here, that fact alone does not make petitioner’s program an “unfair” method of competition nor may the selling activities of petitioner be described as “deceptive acts or practices”. In Brown there was no “sale” of the tying product (franchise services); there is. no evidence that Brown’s “power or leverage” in the tying product was such as to force the purchase of the “tied products” (shoes). This case presents a situation where the seller, Brown, has no control or dominance over the tying product, seiwices; consequently, the-Brown franchise program is not an “effectual weapon” to pressure buyers into taking the tied item, shoes. If the free services which Brown Shoe Company gives its customers who buy its shoes under its Brown franchise-program can be found to be unlawful under § 5 of the Act, then the next logical step would be to hold unlawful an agreement by a manufacturer or distributor to advertise its products in fixed areas if retailers therein would agree to-stock and to sell them. We likewise find no comparability between the facts with which we are here-concerned and United States v. Loew’s Inc., 1962, 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11, wherein the Supreme Court adopts the trial court’s apt example of' “ x x x forcing a television station which wants ‘Gone With The Wind’ to take ‘Getting Gertie’s Garter’ as well, as taking undue advantage of the fact, that to television as well as motion picture viewers there is but one ‘Gone With The Wind.’ ” There is more than one-source from which the Brown franchise dealers can obtain the services complained about. Brown had no monopoly on services performed under the franchise-program. Other manufacturers can and do render like services. Nor do we find United States v. Jerrold Electronics, Inc., E.D.Pa., 1960, 187 F.Supp. 545, affirmed by the Supreme-Court on the basis of Northern Pacific, International Salt, etc., at 365 U.S. 567,. 81 S.Ct. 755, 5 L.Ed.2d 806, comparable-to the facts with which we are here concerned. In Jerrold the trial court said at page 555 of 187 F.Supp.: “ * * * Jerrold’s highly specialized head end equipment was the only equipment available which was designed to meet all of the varying problems arising at the antenna site. It was thus in great demand by system operators. This placed Jerrold in a strategic position and gave it the leverage necessary to persuade customers to agree to its service contracts. This leverage constitutes ‘economic power’ sufficient to invoke the doctrine of per se unreasonableness.” There is no parallel between the facts present in Jerrold and those presented here. Brown’s franchise program was not the only program available to retailers. It did not give Brown the economic leverage to force the sale of its shoes. The tying product in Jerrold was highly specialized equipment which was in great demand. There is nothing specialized or unique about the services offered by Brown. The Commission alternatively relies on Brown Shoe Co., Inc. v. United States, supra, 370 U.S. 294, 82 S.Ct. 1502, 8 L. Ed.2d 510, as persuading it “ * * * that the prospective competitive impact of the franchise program is such that the standards of illegality under Section 3 and Section 7 of the Clayton Act, as amended, have been met.” We cannot agree. That case tested the illegality of Brown’s acquisition of Kinney through a merger of the corporations and found that the vertical arrangements were illegal under §§ 3 and 7 of the Clayton Act. We find it utterly unpersuasive here. Brown has not “acquired” the retail outlets of those who join its program. The latter are free to leave it at any time. The only similarity between this case and the previous Brown Shoe Co. decision, supra, is the fact that the same corporation is involved in both disputes. This case can be likened to Timken Roller Bearing Co. v. F. T. C., 6 Cir., 1962, 299 F.2d 839, certiorari denied, 371 U.S. 861, 83 S.Ct. 118, 9 L.Ed.2d 99. There Timken was found by the Federal Trade Commission to be in violation of § 3 of the Clayton Act, 15 U.S.C.A. § 14, by following a consistent policy of “exclusive dealing”. The court, in setting aside the Commission’s order and findings, said beginning at page 840 of 299 F.2d: “In support of the accusations contained in the Complaint, the Commission introduced in evidence numerous documents purporting to prove Timken’s consistent policy of exclusive dealing. The majority of these documents consisted of salesmen’s reports to the Timken home office, recommending the taking on of a new account or the canceling of an old one. In our view, the Commission’s whole case rests upon the fact that, in these reports, the salesmen either recommended Timken’s taking on a new account because it would be ‘loyal’ to that company, or suggested that an old account be can-celled because the dealer was stocking the products of a Timken competitor. ***** * “ * * * Nor can the documents alone be substantial evidence of such a policy, inasmuch as, even if these reports show that Timken cancelled dealers’ accounts because they were dealing in competitive bearings, this alone is not illegal. Perhaps the rule has best been stated for our purposes in the following language: ‘The anti-trust laws do not prohibit a manufacturer or distributor from selecting dealers who will devote their time and energies to selling the former’s products and a manufacturer is not compelled to retain dealers having divided loyalties adverse to the interests of the said manufacturer or distributor.’ Mc-Elhenny Co., Inc. v. Western Auto Supply Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_respond1_1_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "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". WALKER et al. v. TRAYLOR ENGINEERING & MFG. CO. (Circuit Court of Appeals, Eighth Circuit. April 12, 1926.) No. 6951. I. Courts <§=>374. Questions of pleadings on motion for judgment thereon must be determined by laws of state. 2. Commerce <§=>46 — Oklahoma statute relating to foreign corporations doing business in state does not apply to corporations engaged in interstate commerce or to transactions therein. Oklahoma statute relating to foreign corporations’ right to do business' in state does not apply to corporations engaged in interstate commerce or to transactions therein. 3. Corporations <§=>672(4) — In foreign corporation’s action on note, pleading of plaintiff’s incapacity to sue due to failure to comply with state laws held insufficient. In action against indorsers on note, answer alleging that plaintiff was a foreign corporation which had not complied with laws relating to doing business in state, and for that reason had not legal capacity to sue, held insufficient to raise such defense, in absence of allegation that transaction was intrastate one. 4. Bills and notes <§=>226. Want of consideration for indorsement is good defense against one who is not a holder in due course. 5.. Bills and notes <§=>338. Original payee held not a holder in due course. 6. Bills and notes <§=>226. Indorser may set up want of consideration for his contract of indorsement. 7. Bills and notes <§=>474. Admission, by answer, of execution and delivery of note sued upon, does not preclude proof by indorser of want of consideration for indorsement. 8. Bills and notes <§=>497(3) — Indorser’s plea of want of consideration for indorsement places on plaintiff burden of-proving consideration or that he is a holder for value. On indorsér’s plea of' want of consideration for note, execution and delivery of which is admitted, burden shifts to plaintiff to prove consideration or that he is á holder for value. 9. Pleading <§=>345(1) — Judgment on pleadings for plaintiff against indorsers held improper, in view of pleading of want of consideration for indorsement (Comp. St. Okl. 1921, § 307). In action against indorsers on note, where unverified answer alleged that indorsements were procured after execution and delivery of note and were without consideration, and alleged failure of consideration as to maker, and reply did not traverse allegation of want of consideration for indorsement, but merely attacked defense of failure of consideration to maker, held judgment on pleadings for plaintiff was improper, irrespective of effect to be given reply under Comp. St. Okl. 1921, § 307. 10. Bills and notes <§=>453. Defense of misrepresentation and breach of warranty in transaction, out of which note arose, is not open to accommodation indorser. 11. Bankruptcy @=299. Trustee in bankruptcy of corporation and not referee is proper pax-ty to represent bankrupt estate in action on corporation’s note. 12. Bills and notes @=484 — Plea on information and belief that certain sums had been paid on note held insufficient plea of partial payment. In action against indorsers on note, defendants’ plea on information and belief that maker had “paid certain sums on the said note not thereon credited,” and that sum sued for was not due, held insufficient pleading of partial payment. In Error to the District Court of the United States for the Eastern District of Oklahoma; Eranklin E. Kennamer, Judge. Action by the Traylor Engineering & Manufacturing Company against P. G. Walker, Jr., and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded. G. C. Spillers, of Tulsa, Okl. (E. J. Doerner, of Tulsa, Okl., on the brief), for plaintiffs in error. A. J. Biddison and Harry Campbell, both of Tulsa, Okl., for defendant in error. Before KENYON and VAN VALKENBURGH, Circuit Judges, and YOUMANS, District Judge. VAN VALKENBURGH, Circuit Judge. Defendant in error, a corporation organized and existing under the laws of the state of Delaware, brought suit in the District Court for the Eastern District of Oklahoma against plaintiffs in error, upon a promissory note for the sum of $5,330.43, executed by the Choctaw Portland Cement Company, a corporation. On the back of said note are the indorsements of plaintiffs in error. The petition charged that said plaintiffs in error, “at the time of the making and execution of said note, and prior to the delivery thereof, indorsed, respectively, their respective names upon the back of said note with the intent and to the effect of thereby becoming liable thereon as makers of said note before delivery.” Defendant in error was the payee named in the note, and the petition alleges that ever since the execution and delivery thereof it had been and still was the owner and holder of the note, no part of the principal of which had been paid. By their answer, plaintiffs in error charged that defendant in error had no legal capacity to maintain this suit, for the reason that it is a foreign corporation doing business within the state of Oklahoma, and has neglected and failed to comply with the laws of that state, in that it has failed to appoint a resident agent upon whom service of process might be had, has not filed a copy of its charter with the secretary of state, and has not filed a copy of the' appointment of a resident agent with the county clerk wherein the said agent, if any, resides, as provided by law. The answer admits that the Choctaw Portland Cement Company did make and deliver to defendant in error the promissory note upon which the suit was brought, but alleged that thereafter plaintiffs in error indorsed or wrote their names across the back of said note. The answer further states “that the said indorsement was wholly without consideration between the defendants and the plaintiff herein, and that nothing of value passed between the plaintiff and the defendant, and that there was no consideration for the placing of the signatures of these defendants on the back or reverse side of said note. “Answering further, defendants state that they did not indorse the said note contemporaneously with the making of same, and that their signatures across the back thereof, as indorsers, were placed there without any consideration, and at a time subsequent to the making, execution and delivery of said note to the plaintiff by the said Choctaw Portland Cement Company.” Eor further defense, the answer alleges that the note itself was without consideration; that it was made as a part of the original- consideration or purchase price paid defendant in error by the cement company for a rock crusher, which was represented to be worth the sum of $14,000, and to be in a suitable and fit condition to perform the services for which it was designed; that it was in fact defective, in that one of the large rollers was cracked, and that said crusher was worthless and of no value as a rock crusher. The answer further states that the note sued on was procured by the plaintiff through fraud and misrepresentation, in that it was stated by a representative of defendant in error that the rock crusher was properly constructed out of suitable material and reasonably fit and suitable for the purpose of crushing rock for the cement company in the course of its business; that defendant in error at the time knew that said crusher was defective and utterly worthless as such, and, in order to deceive and defraud the cement company, painted the cracked portion of the machine with a heavy coat of paint in order to conceal the crack and defective condition thereof; that thereby the cement company was deceived into purchasing and receiving the same, and did not discover the defective condition of the machinery until the early part of the year 1922. The note in question was dated April 21, 1920, and this suit was filed April 29, 1924. Further on in the answer it is again stated that, relying on the representation aforesaid, the cement company purchased the machine and that the same was utterly worthless; that thereafter, as a part of the consideration for the purchase, the note sued on was given, and plaintiffs in error were, without consideration, at the request of defendant in error, induced to sign said note, “which had been obtained by fraud and false representations of the said plaintiff, as hereinabove set forth.” The plea of paidial payment is next made in the following language: “Defendants further state that they are informed and believe, and state the facts to be, that the said Choctaw Portland Cement Company has paid certain sums on the said note not thereon credited, and that there is not due on the said note the sum herein sued on.” The answer then concludes as follows: “Defendants further state that, if for any reason the said plaintiff should prevail in this eause, and obtain á judgment against the defendants herein, or any of them, that they should have a judgment over and against the Choctaw Portland Cement Company for any amount so recovered against defendants, or any of them; that, by reason of the fraud practiced by the plaintiff in procuring the said note, as hereinabove set forth, and by reason of the fact that defendants herein were accommodation indorsers on the said note, the said Choctaw Portland Cement Company, or its legal representative, should be made a party to this suit, in order that all parties may be before the court, and that exact justice may be done between the parties hereto. Wherefore, having answered fully, defendants pray that plaintiff take nothing by its action herein, that the said Choctaw Portland Cement Company, - or its legal representative, be made a party to this suit and that upon a final hearing of this eause, defendants be allowed to go hence and recover their costs herein expended.” This answer was unverified. Defendant in error at first replied denying the allegations of new matter contained" in the answer, and thereafter filed an amended reply in which it set out a provision of the contract to the effect that no officer, agent, or salesman had any authority to obligate the company by any terms, stipulations, or conditions not in said contract expressed, and, further, that by the contract the company agreed to repair or replace any material or part of its machine which, within one year after shipment, is proven to have been defective when shipped, provided the purchaser gives the company immediate written notice of such defect. The amended reply further alleged that no written notice, or any notice, had ever been given that any part of the said rock crusher was defective either when shipped or at any other time, and that the same was received by the cement company within thirty days of the date of the note sued on in this action. The reply further pleads that the cement company would be, and is, estopped by the conditions of the contract, and that plaintiffs in error have no right or authority to set up this defense. Some time between the giving of the note in suit and the bringing of this action the Choctaw Portland Cement Company had been duly adjudged a bankrupt. Plaintiffs in error moved that the referee in bankruptcy be made a party and be permitted to file an answer and cross-petition. A like motion was filed by the referee himself; the latter motion, alleged that the Choetaw Portland Cement Company was in bankruptcy, had a full and complete defense to the action on said note, and was a proper and necessary party to a full and complete determination of the issues; both applications were by the court denied. Thereafter, the eause coming on for trial, upon the issues joined, a jury was impaneled, to which counsel for plaintiff and defendants made their opening statements. At the conclusion of the statement of counsel for defendants, counsel for plaintiff moved the court for a judgment in favor of the plaintiff and against the defendants on the pleadings and on the statement of counsel for defendants. As stated in the judgment entry: “The court, after reading the pleadings and hearing the arguments of counsel, and being fully advised in the premises, sustains the motion of the plaintiff for a judgment against defendants on the pleadings without regard to the statement of counsel for defendants to the jury.” Judgment was accordingly entered in the sum of $6,440 for principal and interest, and the further sum of $654 for attorneys.’ fees as provided in the note. The rulings of the court in rendering judgment on the pleadings and in refusing to permit the referee in bankruptcy to intervene and file answer and cross-petition are assigned as error. As will be seen, the case turns largely on questions of pleading, and these questions must be determined by the laws of the state of Oklahoma regulating the practice and pleadings in the courts of that state. Rush v. Newman (C. C. A. Eighth Circuit) 58 E. 158-161, 7 C. C. A. 136; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co. (C. C. A. Eighth Circuit) 114 F. 82, 52 C. C. A. 25, 57 L. R. A. 696; Coffey v. United States, 117 U. S. 233, 6 S. Ct. 717, 29 L. Ed. 890. The first contention is that defendant in error had no legal capacity to sue by reason of the failure to comply with the laws of the state of Oklahoma regulating foreign corporations doing business in that state. Without reference to the merits involved, it is the holding of the Oklahoma courts that its statute does not apply to corporations engaged in interstate commerce nor to transactions in interstate commerce. Kibby v. Cubie, Heimann & Co., 41 Okl. 116,137 P. 352. The answer states that the defendant in error is a Delaware corporation, and is doing business within the state of Oklahoma, but nowhere alleges this to have been an intrastate transaction. “To show that a given contract with a foreign corporation is invalid, because of transaction of business in this state while unqualified, it is incumbent on the pleader to clearly show that the particular contract involved (a) was made in this state, (b) and that the making of sueh contract constituted doing business in this state, or that the contract arose out of a transaction in this state, (e) and that the corporation was unqualified.” Jones v. Mosby, 19 Ala. App. 467, 98 So. 313; Leverett v. Garland Co., 206 Ala. 556, 90 So. 343. This is the general rule. Eor this reason, without more, we think the answer insufficient to raise this defense. Plaintiffs in error plead that their indorsement was not made contemporaneously with the execution and delivery of the note, but that, after sueh execution and delivery by the cement company, plaintiffs in error, at the request of defendant in error, wrote their names across the back of the note; that their indorsements were therefore without consideration. This, if true, would constitute a good defense against a payee, not a holder in due course, and defendant in error, being the original payee, is not a holder in due course. Farmers’ State Bank v. Mowry et al., 107 Okl. 275, 232 P. 26; Bank of Carrollton, Miss., v. Latting, 37 Okl. 8, 130 P. 144, 44 L. R. A. (N. S.) 481; Hartman v. Redman, 21 Mo. App. 124; Pratt v. Hedden, 121 Mass. 116; Brandt on Suretyship and Guaranty, § 26; American Multigraph Co. v. Grant, 135 Minn. 208, 160 N. W. 676. It is the contention of defendant in error that the answer admits the execution and delivery of the note and the indorsements, and that this must be taken to admit them with all of their legal effect as pleaded in the petition. But the answer, while admitting, as it must, the execution and delivery by the cement company, expressly denies that the indorsements were made prior thereto. On the contrary, it is claimed that the indorsements were not made until a later time, and then at the request of defendant in error; that there was therefore no consideration therefor. That want of consideration may be set up by an indorser where it relates to his contract of indorsement is settled beyond successful dispute. 8 Corpus Juris, 744; 8 Cye. 25. The admission of execution and delivery, whether by direct pleading or through lack of verification of an answer which denies all the other allegations of plaintiffs’ petition generally or specially, puts in issue all the averments of fact in the petition except the execution of the written instruments, and does not preclude proof by an indorser of want of consideration for his indorsement. The burden then shifts to plaintiff, who must either show that he is a holder for value or must prove consideration. Holley v. Smalley, 50 App. D. C. 178, 269 F. 694; Harn v. Interstate Building & Loan Co., 77 Okl. 265, 188 P. 343; Withers v. Greene, 9 How. 213-222,13 L. Ed. 109; Brown v. Weldon, 99 Mo. 564, 13 S. W. 342. Where an answer, though unverified, admits the execution of an instrument, and admits the legal effect of such instrument, but does not admit any facts extraneous to the instrument itself, and alleges other facts which, if true, would destroy the legal purport and effect of sueh instrument, or which would constitute a defense to its legal purport and effect, such allegations raise an issue distinct from the instrument itself. Hastings v. Hugo National Bank, 81 Okl. 189, 197 P. 457. A plea of want or failure of consideration, setting up facts which, if true, would support that plea, raises an issue which cannot be ignored; and a motion for judgment on the pleadings should not be sustained, where the pleadings of defendant set up a substantial and issuable defense. 23 Cyc. 769, and eases eited. “Motions are generally appropriate only in the absence of remedies by regular pleadings, and eannot be made available to settle important questions of law, or to dispose of the merits of the ease.” Illinois Central R. R. Co. v. Adams, 180 U. S. 28-38, 21 S. Ct. 251, 255 (45 L. Ed. 410). In Cobb v. Wm. Kenefick Co., 23 Old. 440, 100 P. 545, it is held : “A motion for a judgment on the pleadings is a common and permissible practice, but, in a ease where filed by the plaintiff to a defendant’s answer, it should be granted only when such answer, allowing every reasonable intendment in its favor, does not deny or state a defense to the material allegations of the petition.” The general rule, as stated in 23 Cye. 769, is quoted with approval, and the court then quotes from authorities cited as follows: “The pleadings objected to as insufficient will be liberally construed, and the motion will be denied, where there is any reasonable doubt as to their insufficiency. * * * Upon such motion every reasonable intendment is in favor of the sufficiency of the pleading objected to.” Loc. cit. 451 (100 P. 549). In the later case of Henryetta Spelter Co. et al. v. Guernsey et al., 82 Okl. 71, 198 P. 495, the same court says: “Where an issue of fact is presented by the pleadings, it is error to sustain a motion for judgment thereon. Where plaintiff files reply to new matter set up in defendant’s-answer, thus putting in issue the new matter in defendant’s answer, it is error to render judgment on the pleadings.” In this ease defendant in error did file a reply, but in it did not traverse the allegation of want of consideration for the indorsement of plaintiffs in error. It attacked merely the defense of failure of consideration to the purchaser, the Choctaw Portland Cement Company. This new matter in the reply was not controverted by pleading. But the statutes of Oklahoma provide that: “The allegation of new matter in the reply shall be deemed to be controverted by the adverse party, as upon direct denial or avoidance, as the ease may require.” Compiled Statutes Oklahoma 1921, vol. 1, § 307. In Continental Insurance Co. v. Pearce, 39 Kan. 396, 18 P. 291, 7 Am. St. Rep. 557, it is held that allegations of new matter in a reply are not taken as true, whether denied under affidavit or not. Counsel for defendant in error points out that the Code of Civil Procedure of Oklahoma was adopted from the state of Kansas. In Peck et al. v. First National Bank of Claremore, 50 Okl. 252, 150 P. 1039, the Supreme Court of Oklahoma holds that a motion for judgment on the pleadings is in the nature of a demurrer, and is not available to dispose of the merits of a case; that the pleading must be clearly bad in order to justify a judgment on motion in favor of the other party, and, if there is any reasonable doubt as to the sufficiency of the pleading, judgment on such motion will not be granted; that, where it is necessary for plaintiff to file reply to new matter set up in defendant’s answer to avoid a’ judgment on the pleadings in favor of defendants, it is reversible error to render judgment on the pleadings on the plaintiff’s motion made after his reply is filed. Upon this point the court says: “It was necessary for the defendant in error to file a reply to the answers of plaintiffs in error to defeat their motion for judgment on the pleadings, or at least it so acted. It follows that, if the answers of the plaintiffs in error set up new matter sueh as to require a reply, it was error to sustain the motion of defendant in error for judgment on the pleadings. The motion acts as a demurrer, and, after reply filed and issues of fact thereby raised, it could not be said that the plaintiff could then successfully urge a demurrer to the answers.” But whatever may be the effect of the filing of this reply, it is our judgment that the answer raised a substantial issue respecting want of consideration for the indorsements sued on, -and therefore that it was error to render judgment on the pleadings. This holding calls for a reversal of this judgment. But some other matters are raised in the briefs which require attention, in view of a necessary retrial of the case. Plaintiffs in error by their answer seek to avail themselves of the defense of failure of consideration for the note itself, and, as an incident thereto, move that the cement company, the purchaser, be permitted to intervene and file answer and cross-petition, setting up that defense. The weight of authority seems to be that such a defense, involving misrepresentation and breach of warranty, is available only to the purchaser, and is not open to an accommodation indorser. “An accommodation indorser eannot set up a breach of warranty as to the quality of the articles for which the note was given.” 8 Cye. 25, and authorities cited; 8 Corpus Juris, 751, § 1021; Harris v. Pate, 7 Ind. Terr. 493, 104 S. W. 812; Rumley v. Koetter, 74 Okl. 204, 178 P. 116; Gillespie v. Torrance, 25 N. Y. 306, 82 Am. Dec. 355; Pleitmann v. Ashley, 60 App Div. 201, 69 N. Y. S. 1099; Veriscope Co. v. Brady, (City Ct.) 77 N. Y. S. 159. There is some intimation to the contrary where the maker becomes insolvent. Martin v. Kercheval et al., 16 Ped. Cas. 896, No. 9,163; Newton v. Lee, 139 N. Y. 332, 34 N. E. 905. The reason for the rule stated is that such a defense is personal to the maker of the note, who is the purchaser of the chattel —one of which he may or may not avail himself as he may elect, or which he may waive by lack of diligence or other conduct. This cannot affect an indorser before maturity for a valuable consideration, where the payee has relied upon it and has thus given consideration for his title. In this case the insolvency of the cement company is pleaded, and the intervention of the referee in bankruptcy was prayed in order that the matter might be fully determined as affecting the rights of all parties. It is to be noted, however, that the trustee, and not the referee, would be the proper party to represent the bankrupt estate. If the procedure and practice in OHahoma permits such an intervention in an action of this nature, we see no reason why, upon proper application, it may not be permitted. In the present state of the record we are hardly in a position to pass upon this phase of the controversy. Plaintiffs in error, by their own pleading, are accommodation indorsers. If their defense of want of consideration upon their contract of indorsement be sustained, then the integrity, or want thereof, of the note sued on, becomes immaterial as to them. That question becomes important only in case they fail to establish want of consideration on their own contract of indorsement. Plaintiffs in error have attempted to set up the defense of partial payment. We think that defense as pleaded is insufficient. It is an affirmative defense, and to be available must be expressly and adequately pleaded. In this respect the answer is too indefinite. However, upon retrial this defect may disappear. The same is true of the effects of lack of verification of the answer, upon which some contentions of defendant in error are based. It follows from what has been said that the judgment must be reversed and the ease remanded for further proceedings in accordance with this opinion. It is so ordered. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_genresp2	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. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. In the Matter of WOODMAR REALTY COMPANY, a Corporation, Bankrupt. WOODMAR REALTY COMPANY, a Corporation, Bankrupt, Appellant, v. William A. SPENCER, Deceased, et al., Appellees. No. 13555. United States Court of Appeals Seventh Circuit. June 13, 1962. See also 294 F.2d 785. Owen W. Crumpacker, George V. Burbach, Hammond, Ind., Benjamin Wham, Chicago, Ill., for appellant. Herschel B. Davis, Gary, Ind., for ap-pellee. Before' ENOCH, CASTLE and EILEY, Circuit Judges. CASTLE, Circuit Judge. Woodmar Realty Company, bankrupt-appellant, seeks reversal of an order of the District Court, entered in the bankruptcy proceeding, denying Woodmar’s motions to strike or dismiss thirty-three claims for failure of the claimants to answer interrogatories and for want of prosecution. All of the claims involved are of the type described as “Class 2” in our opinion in In re Woodmar Realty Company, 7 Cir., 284 F.2d 815. And the factual background set forth in that opinion is adequate for the purposes of this case and need not be repeated here. Walter A. McLean, the trustee in bankruptcy, who was permitted to intervene on appeal, filed a motion to dismiss this appeal which was taken with the case. That motion raises the issue of this Court’s jurisdiction to entertain the appeal — whether the interlocutory order here sought to be reviewed is an appeal-able order within the purview of 11 U.S. C.A. § 47, sub. a. That 11 U.S.C.A. § 47, sub. a does not make all interlocutory orders in proceedings in bankruptcy appealable is recognized in Albin v. Cowing Joint Co., 317 U.S. 211, 212, 63 S.Ct. 170, 87 L.Ed. 212, where reference is made to remaining “possible limitations on the reviewability of interlocutory orders”. The District Court’s order denying appellant’s motions to strike or dismiss makes no adjudication determinative of the claims— they remain pending and subject to future allowance or disallowance, reviewable by appeal. All that was determined was the insufficiency of appellant’s motions to strike and dismiss on the grounds urged — both of which involve matters subject to a sound exercise of the court’s discretion. In Columbia Foundry v. Lochner, 4 Cir., 179 F.2d 630, 635, 14 A.L.R.2d 1349, although the motion to dismiss the appeal was denied, it was pointed out: “ * * * [T]he decisions limit the appeal to interlocutory orders which have the character óf a formal exercise of judicial power affecting the asserted rights of a party and an appeal from an inter--locutory order involving the exercise of the trial court’s discretion is allowed only upon a showing of an abuse of discretion. See Collier on Bankruptcy, supra, §§ 24.11, 24.39. Clearly, due regard for the efficiency and dispatch of bankruptcy proceedings requires that the right of appeal from interlocutory orders under Section 24, sub. a, be kept within reasonable bounds.” In commenting upon the purpose of 11 U.S.C.A. § 47, sub. a, in so far as it permits of interlocutory appeals it was aptly observed in Hoehn v. McIntosh, 6 Cir., 110 F.2d 199, 201, that: “The salutary purpose of the legislation would be destroyed if every order, no matter how trivial, were subject to review. The Act does not contemplate tying up the estate and prolonging administration by appeals, unless the subject has been finally disposed of in the lower court and practically nothing remains to be done in that respect so that rights may be definitely determined by review.” In our considered judgment the order here sought to be appealed is not the type of interlocutory determination to which the provisions of 11 U.S.C.A. § 47, sub. a, were meant to extend a right of review. This is especially so in the posture in which we find this proceeding and from the history and status of litigation therein. We conclude that this Court is without jurisdiction of the appeal and it is therefore dismissed. Appeal dismissed. . Section 24, sub. a of the Bankruptcy-Act, which in so far as here pertinent, provides: “The United States courts of appeals, * * ® are invested with appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy, to review, affirm, revise, or reverse, * ® ®.” . See In re Woodmar Realty Company, 7 Cir., 294 F.2d 785, and In re Woodmar Realty Company, No. 13579, opinion filed Aug. 20, 1962, 307 F.2d 591 intended to establish the “law of the ease” relative to objections filed by Woodmar against Class 2 claims, which was under advisement at the time of the issuance of this opinion. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_appbus	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of 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. TUNIS BROTHERS COMPANY, INC. de la Rigaudiere, Richard N. and Smith, David C., Appellants, v. FORD MOTOR COMPANY, Ford Motor Credit Company, Wenner Ford Tractor, Inc., Wenner, John S. Watson, John Crawford, Douglas N. Fraher, Eugene W. Hasel, E.S. Nickel, Hugh Harris, Kenneth E. and Wenzel, C.W., Appellees. No. 84-1318. United States Court of Appeals, Third Circuit. Argued Jan. 15, 1985. Decided May 30, 1985. Rehearing and Rehearing In Banc Denied June 24, 1985. Arnold R. Ginsburg (Argued), Haverford, Pa., for appellants. Steven T. Stern (Argued), Braemer and Kessler, Philadelphia, Pa., for appellees Wenner Ford Tractor, Inc. & John S. Wenner. Robert C. Heim (Argued), Jeffrey G. Weil, Robert A. Limbacher, Dechert, Price & Rhoads, Philadelphia, Pa., for appellees Ford Motor Co., Ford Motor Credit Co., John Watson, Douglas N. Crawford, Eugene W. Fraher, E.S. Hasel, Hugh Nickel & Kenneth E. Harris. Before HUNTER and HIGGIN-BOTHAM, Circuit Judges, and DEBE-VOISE, District Judge. Honorable Dickinson R. Debevoise, United States District Court for the District of New Jersey, sitting by designation. OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge: The plaintiffs in this “distributor termination” case, a franchised tractor dealership and its new owners, appeal a final order of the district court granting summary judgment in favor of the defendant franchisor and other corporate and individual defendants on plaintiffs’ federal antitrust claims. The appealed from order also dismissed plaintiffs’ state common law breach of contract and tort claims without prejudice. We reverse and remand for further proceedings. I. THE SUMMARY JUDGMENT RECORD A. The Complaint and Other Pleadings The six-count complaint filed by plaintiffs Tunis Brothers Company, Inc. (“Tunis Brothers”), Richard N. de la Rigaudiere (“de la Rigaudiere”) and David C. Smith (“Smith”) on December 15, 1982 and amended July 14, 1983, includes four counts alleging violations of section 1 of the Sherman Act, 15 U.S.C. § 1 (1982) by three corporate defendants and eight individual defendants. The remaining two counts allege state common law tort and contract claims against the defendants and invoke pendent jurisdiction. The plaintiffs claim injuries to their business and property in the amount of $7,724,357 and seek treble damages from the defendants in the amount of $23,173,071. Appendix (“App.”) at 11-94. Count I alleges, inter alia, that corporate defendants Ford Motor Company (“Ford”), Ford Credit Company (“Ford Credit”), Wenner Ford Tractor, Inc. (“Wenner Ford”), and individual defendant John S. Wenner (“Wenner”) conspired to terminate the authorized Ford tractor dealership of plaintiff Tunis Brothers, a Pennsylvania corporation located in Kennett Square, Pennsylvania. Complaint $ 66, App. at 35. The business of Tunis Brothers had been established in 1934 by Richard M. Tunis and his brother Robert. In 1959, Tunis Brothers entered into an agreement with Ford and became a franchised tractor dealership owned and operated by Richard Tunis and his wife Isabelle. From 1959 until April 1981 when its Ford dealership franchise was terminated, Tunis Brothers was an authorized dealer of Ford tractors and related equipment and it sold Ford tractors, Ford accessories and non-Ford products. On March 13, 1981, plaintiffs de la Rigaudiere and Smith purchased the business and became the sole directors and stockholders of Tunis Brothers Company, Inc. Count I further alleges that the defendants conspired to prevent plaintiffs de la Rigaudiere and Smith, the new owners of Tunis Brothers, from operating in Kennett Square to eliminate or substantially decrease competition with defendant Wenner Ford Tractor, Inc. Complaint 66, App. at 35-6. Wenner Ford is a Delaware Corporation whose principal place of business prior to 1982 was Concordville, Pennsylvania, about 11 miles east of Kennett Square. Wenner Ford was the authorized Ford dealer of farm and industrial tractors, machinery, equipment and parts nearest Tunis Brothers. It is a Ford Dealer Development Company, established by Ford in November 1979, in which defendant Ford owns all of the voting stock and 79% of the equity stock. App. at 3522-37. Defendant John 5. Wenner owned 21% of Wenner Ford’s equity stock, app. at 3712-3883, and operated Wenner Ford as its president and chief executive officer pursuant to a Dealer Development Agreement and a Management Agreement. App. at 3434, 3449. It is alleged in Count 1 that, in addition to John S. Wenner, the other named individual defendants, employed by Ford in varying managerial capacities, participated in and aided and abetted the conspiracy. These individuals are: John Watson (“Watson”); Douglas N. Crawford (“Crawford”); Eugene W. Fraher (“Fraher”); E.S. Hasel (“Hasel”); Hugh Nickel (“Nickel”); Kenneth E. Harris (“Harris”) and C.W. Wenzel (“Wenzel”). It is further averred in Count 1 that the conspiracy and actions of the defendants were not only in unreasonable restraint of trade but were illegal per se because they were in furtherance of an illegal horizontal territorial restriction by Ford where Ford was in both a horizontal and a vertical relationship with Tunis Brothers, as both franchisor and competitor. Complaint U 74, App. at 38. Count II alleges that the 1974 franchise agreement between Ford and Richard and Isabelle Tunis constituted a contract in unreasonable restraint of trade due to the existence of certain unlawful provisions. The individual defendants are alleged to have aided and abetted Ford in exercising its rights under the agreement in furtherance of illegal objectives. Complaint j[ 95, App. at 48. Count III alleges, inter alia, that the franchise agreement and the conspiracy included “dirty business tricks and unfair business dealing ... in furtherance of defendants’ illegal antitrust objectives and their unreasonable restraint of trade ...” Complaint j[ 97, App. at 49. Count IV avers that the franchise agreement and the conspiracy, by eliminating Tunis Brothers as a competitor, eliminated intrabrand competition in the sale and service of Ford products. Because no inter-brand competition of any significance or consequence was promoted by such elimination of intrabrand competition, it is alleged that the anti-competitive effect constituted an unreasonable restraint of trade. Complaint j[ 100, 102; App. at 50, 51. As to the state causes of action, Count V alleges tort liability under common law based on fraud and other tortious conduct. App. at 52-9. Count VI alleges contract liability on the part of the defendants at common law. App. at 60-5. The defendants’ answers and amended answers to the amended complaint deny all material allegations. B. Defendants’ Rule 56 Motions On November 30, 1983, the defendants filed motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, with supporting memoranda, affidavits, depositions and exhibits. App. at 200-900. The major argument presented by defendants was that there were no genuine issues of material fact in dispute and, on the basis of the undisputed facts, the plaintiffs not only failed to show direct evidence of a conspiracy but also failed to present facts which would permit a reasonable inference of conspiracy. Moreover, defendants argued that plaintiffs presented no facts showing an adverse impact on competition. They also asserted that there were no facts supporting plaintiffs’ breach of contract claim. In reply, the plaintiffs filed memoranda, affidavits, depositions and exhibits in opposition to defendants’ summary judgment motions. App. at 900-1375. They argued in a 141-page brief that the factual record fully supported the allegations in the complaint and that there were genuine issues of material fact in dispute. The district court heard oral argument on February 8, 1984. App. at 1375. In its May 7, 1984 memorandum opinion, the district court found that the plaintiffs failed to establish a “... contract or conspiracy, in restraint of trade” under section 1 of the Sherman Act in two respects. First, the district court held that plaintiffs did not satisfy their burden of producing sufficient evidence of a conspiracy to terminate Tunis Brothers and to prevent de la Rigaudiere and Smith from operating the dealership as a franchise in competition with Wenner Ford. According to the district court, “there is no evidence of a conspiracy under section 1 of the Sherman Act” and therefore, “there is no genuine issue of material fact and all defendants are entitled to judgment as a matter of law on Counts I, III, and IV”. Tunis Brothers Co. v. Ford Motor Co., 587 F.Supp. 267, 274 (E.D.Pa.1984). Second, the district court determined that the 1974 franchise agreement, which contained provisions preventing Tunis Brothers from transferring the franchise without the approval of Ford and which gave Ford the right to terminate the agreement, was not a contract in unreasonable restraint of trade violative of section 1 of the Sherman Act. The district court also determined that “there are no facts which show that Ford improperly used the franchise agreement to deny transfer of the Ford franchise to plaintiffs de la Rigaudiere and Smith.” Tunis Brothers Co., 587 F.Supp. at 275. Summary judgment as to Count II was also granted. Having dismissed all of the federal claims before trial, the district court then exercised its discretion and dismissed the pendent claims in Counts V and VI. 587 F.Supp. at 275. The plaintiffs noticed this appeal on June 4, 1984. II. STANDARD OF REVIEW Although Tunis Brothers, de la Rigaudiere and Smith challenge the district court’s ruling as to the validity of the franchise agreement and the dismissal of the state claims, they have launched their major offensive against the district court’s holding with respect to the entry of summary judgment on the conspiracy charge. They strongly take issue with the district court’s evaluation of the material facts and staunchly maintain that it failed to examine all of the admissible evidence, direct and circumstantial, which they presented in opposition to the defendants’ Rule 56 motions. The plaintiffs contend that the district court did not properly determine what legitimate inferences could be drawn as to the ultimate facts in issue. They assail the trial court’s conclusions by asking: Where are the facts? Of course, in the true nature of our adversarial process, each side has provided us with a portrayal of the evidence which, if selectively read, could be viewed as providing a solid foundation of evidentiary support. Our function on appeal, however, in regard to summary judgment, is the same as that of a trial court: it is not within our province to adjudicate genuine factual issues. We are to view the evidence in the light most favorable to the plaintiffs, the nonmoving parties, giving Tunis Brothers, de la Rigaudiere and Smith the benefit of all reasonable inferences without assessing credibility. To determine whether the defendants have satisfied their burden under Rule 56, we must on the one hand closely scrutinize the affidavits, depositions, and exhibits submitted by the defendants, while on the other, indulgently treat those proffered by plaintiffs. 6 J. Moore, W. Taggert & J. Wicker, Moore’s Federal Practice j\| 56.15[3] (2d ed. 1985). Only if we conclude that the evidence is so one-sided that it leaves no room for any reasonable difference of opinion as to any material fact should we hold that the case should have been decided by the district court as a matter of law rather than submitted to a jury. Although we recognize that summary judgments are somewhat disfavored in antitrust cases, especially when motive or intent is at issue, see Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 165 (3d Cir.1979), they are not automatically precluded in antitrust litigation, if otherwise justified. First National Bank v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968); Sound Ship Building v. Bethlehem Steel Co., 533 F.2d 96, 99-100 (3d Cir.), cert. denied, 429 U.S. 860, 97 S.Ct. 161, 50 L.Ed.2d 137 (1976); Innovation Data Processing, Inc. v. International Business Machines Corp., 585 F.Supp. 1470, 1472 (D.N.J.1984). Therefore, we have, with painstaking care, reviewed this massive 3,712 page record to ascertain whether it does or does not have the quantum of evidence required to sustain the district court’s grant of summary judgment on behalf of the defendants as to Counts I through IV. The critical inquiry is: did the district court err in concluding that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law? Cernuto, 595 F.2d at 165. We believe that, in evaluating the evidence contained in this veritable mountain of briefs and appendices, the trial judge, unintentionally of course, tilted the scale against plaintiffs by failing to factor into the overall conspiracy equation certain significant evidence that clearly favored the plaintiffs. Therefore, we reverse the entry of summary judgment as to Counts I, III and IV. As to Count II, we also reverse the judgment of the district court, again for the reason that evidence favoring the plaintiffs was not taken into account as to the improper use of the franchise agreement. Our review of the dismissal of plaintiffs’ pendent state claims is for an abuse of discretion. In light of our disposition of the federal claims, we reinstate Counts V and VI and remand this matter for trial. III. ANALYSIS A. The Antitrust Claims For activities to constitute a section 1 violation, the following four elements must be present: (1) that the defendants contracted, combined or conspired among each other; (2) that the combination or conspiracy produced adverse, anti-competitive effects within the relevant product and geographic markets; (3) that the objects of and the conduct pursuant to that contract or conspiracy were illegal; and (4) that the plaintiffs were injured as a proximate result of that conspiracy. Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81-2 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978). Although the literal language of section 1 declares “every” contract, combination or conspiracy in restraint of trade to be illegal, it has been construed to proscribe only those combinations that “unduly” restrain trade. Cernuto, 595 F.2d at 166. Thus, unless the particular restraint falls within a category that has been judicially determined to be illegal per se, the legality of a restraint challenged under section 1 of the Sherman Act must be assessed under the “rule of reason” standard. To demonstrate an antitrust violation under the “rule of reason,” plaintiffs would have to show an actual anti-competitive impact on the sale of tractors in the relevant market area. Plaintiffs allege, and may be able to prove such harmful effects, but the district court did not reach the question of adverse impact, having determined that the first element of a section 1 claim was not satisfied. Plaintiffs’ claims, however, are not entirely grounded on the “rule of reason;” in Count 1, plaintiffs allege the per se illegality of the defendants’ combination in the form of a horizontal territorial restriction. 1. Counts I, III, IV — Concerted Action We will first consider whether the defendants met their burden of establishing that, as to the undisputed material facts, there could not have been a conspiracy as a matter of law either because (a) there was not sufficient evidence of concerted action or (b) even if there was such evidence, the acts complained of are not violative of the antitrust laws. (a) Burden of Proof We begin with the proposition that “liability under the antitrust laws [cannot] be measured by any rigid or mechanical formula____” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 1410, 8 L.Ed.2d 777 (1962). To establish the existence of concerted action as a matter of fact, the plaintiff must submit evidence from which a jury could reasonably infer that the defendants “had a conscious commitment to a common scheme designed to achieve an unlawful objective”, Monsanto Co. v. Spray-Rite Service Corp., — U.S. -, 104 S.Ct. 1464, 1471, 79 L.Ed.2d 775 (1984), quoting Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981), or, in other words, “a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement____” American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946); American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230, 1243 (3d Cir.1975). Direct proof of an express agreement is not required. Edward J. Sweeny & Sons, Inc. v. Texaco, Inc., 637 F.2d 105, 111 (3d Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981). As we noted in In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 304 (3d Cir.1983), cert. granted, — U.S. -, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985), “[b]ecause the concert of action which violates the antitrust laws will so rarely be the subject of direct evidence, the Supreme Court has permitted broad latitude with respect to what inferences are permissible from the totality of the circumstances.” (Emphasis added). The Supreme Court stated in American Tobacco Co., .328 U.S. at 809-10, 66 S.Ct. at 1139: It is not the form of the combination or the particular means used but the result to be achieved that the statute condemns. It is not of importance whether the means used to accomplish the unlawful objective are in themselves lawful or unlawful. Acts done to give effect to the conspiracy may be in themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition. No formal agreement is necessary to constitute an unlawful conspiracy. Often crimes are a matter of inference deduced from the acts of the person accused and done in pursuance of a criminal purpose____ The essential combination or conspiracy in violation of the Sherman Act may be found in a course of dealings or other circumstances as well as in an exchange of words, (citations omitted). Conspiracies under the Sherman Act are not dependent on any overt act other than the act of conspiring. See Associated Press v. United States, 326 U.S. 1, 12-13, 65 S.Ct. 1416, 1420-1421, 89 L.Ed. 2013 (1945). Those who, with knowledge of the conspiracy, aid or assist in carrying out the purposes of the conspiracy make themselves parties thereto and are equally liable to or guilty with the original conspirators. The primary facts upon which plaintiffs rely to support their allegation of conspiracy are these: (1) Plaintiffs de la Rigaudiere’s and Smith’s conversations and communications with defendants Ford, John Watson and Eugene W. Fraher regarding the purchase of Tunis Brothers by de la Rigaudiere and Smith and their application for Ford franchise from April 1980 to January 1981 Complaint U 35-45, App. at 23-27. (2) Plaintiffs de la Rigaudiere’s and Smith’s conversations and communications with defendants Eugene W. Fraher and Hugh Nickel regarding their franchise application Complaint H 46-56, App. at 27-32. (3) The events surrounding the rejection of plaintiffs de la Riguadiere’s and Smith’s franchise application Complaint K 57-65, App. at 32-35. The character and effect of an alleged conspiracy are determined only by analyzing the activities in question as a whole, Continental Ore Co. v. Union Carbide, 370 U.S. at 699, 82 S.Ct. at 1410. This court “need not affirmatively find that a conspiracy exists, but merely that there are factual questions concerning such a conspiracy in order to deny the motions for summary judgment.” American Dermatologists’ Medical Group, Inc. v. Collagen Corp., 595 F.Supp. 79, 81 n. 1 (N.D.Ill. 1984). Therefore, we will look to the affidavits, depositions, and exhibits to determine whether the facts alleged by plaintiffs are susceptible of an interpretation that might give rise to an inference of a conspiracy. (1) Plaintiffs’ Conversations and Communications With Defendants Ford, John Watson and Eugene W. Fraher Regarding the Purchase of Tunis Brothers and Ford Franchise April 1980 to January 1981. The district court found, as a matter of undisputed fact, that in March 1980 plaintiffs de la Rigaudiere and Smith began negotiations with Mr. and Mrs. Tunis as to the sale of the dealership. They initiated a series of meetings and negotiations with Richard and Isabelle Tunis, extending over a period of months, culminating in an Agreement of Sale dated December 16, 1980. App. at 2787. Richard de la Rigaudiere deposed that he contacted defendant John Watson, a Zone Manager for Ford’s Tractor Operations for an area including Kennett Square and Concordville, in April of 1980 regarding the proposed sale. App. at 1554. He further testified that Watson suggested that they meet at Wenner Ford and then have lunch at the Concordville Inn, near Wenner Ford. App. at 1908-11. It is undisputed that on May 23, 1980, prior to the sale of the business, de la Rigaudiere and Smith met with defendant John Watson for the purpose of discussing the transfer of the Ford franchise to them once Richard and Isabelle Tunis sold the business. The parties met at Wenner Ford. Meeting at Wenner Ford and Concord-ville Inn — May 23, 1980 De la Rigaudiere testified that Watson introduced him and Smith to John S. Wenner and took them on a tour of the Wenner Ford facility. App. at 1564-5; 1910-91. It is undisputed that the May 23, 1980 meeting also included lunch at the Concordville Inn, during which de la Rigaudiere and Smith told Watson of their plans to purchase Tunis Brothers, expand the business and become franchised tractor dealers in Kennett Square. Defendant Watson indicated that Ford did not intend to have a franchised dealership selling tractors in Kennett Square after Tunis Brothers was sold but rather was interested in having a franchised dealership in the area, 15 miles west of Kennett Square. De la Rigaudiere and Smith both testified that Watson also said that the Kennett Square area was to belong to Wenner Ford after Mr. Tunis retired or sold the business. App. at 1567-15; 1919; 2142, 2377. Watson denies making the statement. De la Rigaudiere further testified that Wenner was seated nearby during lunch at the Concordville Inn and was “in an excellent position to overhear ... our conversation.” App. at 1916. Defendant Wenner testified that he remembered the meeting with Watson, de la Rigaudiere and Smith at Wenner Ford but that he had no recollection of having lunch at the Concordville Inn on that same day and no recollection of ever eating at the Concordville Inn. App. at 108-10. Plaintiffs’ Exhibit P-8, an invoice to Wenner Ford which shows that John Wenner had been at the Concordville Inn on May 23, app. at 2778, contradicts the testimony of Wenner. Watson denied in his deposition knowing that Wenner was at the Concordville Inn. Following the May 23rd meeting, defendant Watson, in his Ford New Dealer Prospecting Report wrote that the two men were very well qualified to represent Ford in the trade area — Oxford and Cochran-ville, Pennsylvania — not Kennett Square. App. at 2779-80. Whether or not Wenner saw Watson, de la Rigaudiere and Smith at the Concordville Inn; whether it was just a coincidence that Wenner was seated at an adjacent table or whether this was planned and prearranged, are disputed issues of material fact properly left for a jury. Meeting on June 13, 1980 with Defendant Eugene E. Fraher Smith testified that he and de la Rigaudiere felt that Watson and Wenner had been collaborating and decided to “go over their heads.” App. at 2143. It is undisputed that later, in June 1980, plaintiffs de la Rigaudiere and Smith met with Watson’s superiors, defendant Eugene E. Fraher, who was then Northeastern District Manager of Ford Tractor Operations, and his associate, Edward Poole, in Cohoes, New York. Smith and de la Rigaudiere did not know that Fraher was also then a Director and Senior Vice President of Wenner Ford Tractor and that he had served in those official capacities since November 1979. App. at 3723, 3735, 3757, 3781, 3790, 3813, 3820, 3828, 3833-34, 3482. De la Rigaudiere testified that Fraher did not mention that Ford had a stock interest in Wenner Ford, or that he was an officer of Wenner Ford. App. at 1936-37. It is undisputed that Fraher confirmed Watson’s report that Ford intended to realign its distributorship and eliminate the Kennett Square outlet. According to Smith, Fraher agreed with Watson that Kennett Square was going to be Wenner’s territory. App. at 2146. De la Rigaudiere testified to the same effect. App. at 1936. De la Rigaudiere testified that Fraher also told them Ford preferred not to have its dealers competing with each other but went on to say that he thought de la Rigaudiere and Smith could have a dealership in Kennett Square for two to three years before they would have to move to the Cochranville area. App. at 1579-80, 1935-36, 1939-40. Smith testified, “Finally, we reached an agreement that we would start out in Kennett Square and after a period of time set up a place in Cochranville.” App. at 2149. Fraher gave de la Rigaudiere and Smith dealer applications and told them to apprise him of the progress of the sale negotiations. App. at 1940. After mortgage financing had been arranged through the Chester County Industrial Development Authority (“CCIDA”), App. at 2790, 3051, Richard and Isabelle Tunis and de la Rigaudiere and Smith signed an Agreement of Sale for Tunis Brothers. It is undisputed that performance of the agreement was not conditioned on de la Rigaudiere and Smith obtaining Ford’s approval to continue the Tunis Brothers dealership as a Ford franchised dealership. In January of 1981 de la Rigaudiere sent to Fraher de la Rigaudiere’s and Smith’s personal financial statements, a copy of the sales agreement, their business plan, a description of the CCIDA and a copy of CCIDA approval. App. at 2857-58. The same package was mailed to defendant Douglas N. Crawford, who had succeeded Watson as Ford’s zone manager. App. at 1666-67. (2) Plaintiffs’ Conversations and Communications With Defendant Hugh Nickel Regarding the Franchise Application March 3, 1981 Meeting At Tunis Brothers The district court found it to be an undisputed fact that on March 3, 1981, defendants Douglas N. Crawford and Hugh Nickel, a Dealer Replacement Representative in the Northern Region of Ford Tractor Operations, met de la Rigaudiere and Smith in Kennett Square to obtain more application information for: 1) a franchised dealership; and 2) credit from defendant Ford Credit As to this particular meeting, the district court made no further findings, nor did it consider record evidence and inferences in support of several important allegations made by plaintiffs. It is especially at this stage that the plaintiffs allege that the district court improperly tilted the scales against them by failing to note several critical facts and inferences favorable to plaintiffs that create a genuine dispute as to material facts within the admonitions of Rule 56. De la Rigaudiere testified that he received a telephone call from defendant Crawford, who said that “Mr. Fraher was sending him.” App. at 1668. Crawford testified that it was Mr. Fraher who telephoned him and told him to go to Tunis Brothers to take the dealer application. App. at 1292-94. Fraher testified that he did not call Crawford. App. at 1338-41. During the meeting with de la Rigaudiere, Smith and Mr. and Mrs. Tunis, Nickel explained that Ford would not process an application for a replacement dealer unless the present dealer submitted a letter of resignation. Nickel presented Mr. Tunis with a form letter of unconditional resignation and termination notice for Mr. Tunis to copy and submit to Ford. Nickel told them Tunis’ resignation letter would not be finally processed until the application of the new owners for Ford franchise was approved. Nickel assured them it would be approved and that the resignation and termination letter would be kept in a drawer and not acted upon. Nickel also recorded considerable detailed financial information which de la Rigaudiere and Smith supplied orally. He had de la Rigaudiere and Smith sign blank applications on which the credit information was to be typed later. He stated that he would have the forms typed up in his office and then return them to de la Rigaudiere and Smith for their review before submitting them. De la Rigaudiere and Smith never saw those papers again. App. at 1954-59. See generally deposition testimony of de la Rigaudiere, App. at 1950 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Ben T. HONEA, Appellant, v. WEST VIRGINIA PULP AND PAPER COMPANY, a corporation, and Jervis B. Webb Company of Georgia, Appellees. No. 10445. United States Court of Appeals Fourth Circuit. Argued June 1, 1966. Decided June 30, 1967. Gedney M. Howe, Jr., Charleston, S. C. (Joseph R. Young and Morris D. Rosen, Charleston, S. C., on brief), for appellant. Wm. H. Grimball, Jr., Charleston, S. C. (D. A. Brockinton, Jr., Grimball & Ca-baniss, and Brockinton & Brockinton, Charleston, S. C., on brief), for appellees. Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges. BOREMAN, Circuit Judge. Attacked on appeal in this personal injury action are (1) the trial court’s charge to the jury on the issue of assumption of risk, and (2) the court’s refusal to submit to the jury the question of the defendant’s willful, wanton and reckless misconduct. Plaintiffs, Ben T. Honea and the Standard Accident Insurance Company, brought this action against West Virginia Pulp and Paper Company (hereafter defendant or Pulp Company) in the federal district court at Charleston, South Carolina, for injuries sustained by Honea on the defendant’s premises. Ho-nea was on Pulp Company’s property pursuant to his employment as a welder with the Jervis B. Webb Company of Georgia (hereafter Webb) which was under contract to install certain equipment at defendant’s plant located in North Charleston, South Carolina. Standard Accident Insurance Company, Webb’s insurance carrier under the South Carolina Workmen’s Compensation Act, paid Honea compensation for his injuries and joined his suit as a party plaintiff. Pulp Company, as third-party plaintiff, brought in Webb as a third-party defendant. Jurisdiction was based on diversity of citizenship and the amount in controversy in excess of $10,000.00. The jury rendered a verdict in favor of defendant. Perceiving no error, we affirm. The contract between defendant and Webb provided that the latter would install a rollout table on the first floor of defendant’s paper manufacturing plant. The paper was produced on the second floor of the plant and conveyed to the first floor by means of a lift or “lower-ator.” The rollout table was to be installed immediately adjacent to the lowerator in order to expedite unloading procedure. There was an excavation, three feet in depth, next to the lowerator shaft and the beams and supports for the rollout table were to be anchored in the excavation. Work began on the project on Monday, September 25, 1961, and was proceeding in orderly fashion. Knowing that welding would be necessary, Webb contacted the Local Ironworkers Union for a welder and the union contacted Honea who reported for work on September 27. He was ordered to work in the excavation where he was to burn and weld girders and tighten bolts and he worked there from about 8:00 A.M. until noon when he stopped for lunch. At 12 :- 25 P.M. he resumed work in the excavation at the same task. At about 1:00 P.M. while he was working with his back to the lowerator, with one leg in the shaft, the apparatus descended and crushed his leg beneath it. The lowerator was described as being a hydraulic-powered lift, with a cylinder beneath it, similar to the lifts generally used in service stations. It had two sides but was open in the front and rear. The lowerator moved quite slowly and required from ninety seconds to two minutes to travel the distance between the first and second floors. It could only be moved from the second to the first floor by pushing a button on the second floor and was sent “blind” to the first floor. This was a safety device to insure that someone on the first floor could not summon the lowerator while persons on the second floor were in and about it. The upward movement was controlled by a push button on the first floor. When the apparatus was in motion a bell would ring to warn those in the area of its approach and there was a large red button on the first floor which, if pressed, would stop the lift within one to two seconds. Honea testified that his welding work required him to wear goggles and a helmet in order to protect his face and that he was wearing such equipment at the time of the accident. While there was uncontradicted evidence that defendant’s employees had warned Webb of the danger posed by the lowerator, Honea stated that he had not been warned of such peril. When working in the excavation he observed the cylinder but was unaware of the lowerator, so he said. He testified further that he did not hear the warning bell at the time of the accident. Honea contends that defendant had assigned one member of a four-man crew to serve as a guard in the area of the lowerator and to push the stop button if a dangerous situation developed. It is suggested that Honea was unable to hear the warning bell because of the equipment he was wearing and because of the loud noises in the plant. Plaintiff produced at least four witnesses who testified that Willie Robinson, an employee of defendant, stood by and stopped the lowerator on the two previous days in which Webb’s employees were on the defendant’s premises. These witnesses included Robinson himself who characterized his job as lowerator guard and unloader. He stated that at the time of the accident he had moved away from the stop button at the front of the lower-ator and was in the rear loading some paper onto a towmotor. Webb employees Travis Griffin, and his brother, Keith Griffin, foreman and supervisor respectively, testified that employees of defendant had warned them of the lowerator hazard at the time they came to the plant, two days prior to the accident, and that they in turn had warned Honea that the apparatus would be in operation and to listen for the warning bell. They further testified that on the two previous days Robinson had been at the stop button and that they had come to rely on him to stop the lowerator. Evans, an employee of defendant, testified that, in addition to his other duties, Robinson served as a lowerator guard; that he saw the lowerator descending toward Honea and he shouted a warning but that it went unheard. There was testimony by supervisors that Robinson was not a guard, that on the day of the accident the lowerator had made twelve to sixteen trips prior to the time of the accident and that the warning bell was ringing loud and clear. The jury absolved the defendant of any negligence by its verdict in defendant’s favor. Plaintiffs contend that it was error to instruct the jury on assumption of risk for the reason that this defense rests on a theory of contract rather than tort and is only available in actions by a servant against his master; and, that clearly there was no master-servant relationship existing between defendant and Honea. We conclude that under South Carolina law, applicable here, assumption of risk is available as a defense in actions where a master-servant relationship exists but is available also where there is no such contractual relationship between the parties. The ease of Baker v. Clark, 233 S.C. 20, 103 S.E.2d 395 (1958), makes this clear. There the plaintiff, who suffered injuries in a fall on defendant’s premises, was denied recovery because she had been adequately warned and thereupon assumed the risk incident to walking on a slippery floor. She was a customer of defendant but had been given permission by defendant’s employee to use the ladies’ restroom which was provided for the use of defendant’s female employees only. The Supreme Court of South Carolina assumed that plaintiff was an invitee and stated that it is well settled that “if a plaintiff freely and voluntarily enters into some relation with a defendant which presents obvious danger, he will be regarded as impliedly agreeing to look out for himself and to relieve the defendant of responsibility.” Id. at 103 S.E.2d 396 (citations omitted). The court pointed out that “There is some confusion in the cases as to whether a defense of this kind should be characterized as contributory negligence or assumption of risk. The two are closely associated. As pointed out by Professor Prosser * * , in the early decisions the doctrine of assumption of risk was confined to cases arising out of the relation of master and servant but it is now recognized that the basis of the defense is not contract but consent, and that it is available in many cases where no contract exists.” Id. at 103 S.E.2d 397. (Emphasis added.) There are also several earlier cases permitting the defense of assumption of risk in factual situations where no master-servant relationship existed. See Singletary v. Atlantic Coast Line R. Co., 217 S.C. 212, 60 S.E.2d 305, 30 A.L.R.2d 326 (1950); Nettles v. Your Ice Co., 191 S.C. 429, 4 S.E.2d 797 (1939); Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466 (1939); Augustine v. Christopoulo, 196 S.C. 381, 13 S.E.2d 918 (1941). Discussion of these cases would seem to serve no useful purpose in light of the clear statement in Baker v. Clark, supra, 103 S.E.2d 395. Plaintiffs cite several cases in support of their contention. None of these cases is concerned with the precise issue before us. In Cooper v. Mayes, 234 S.C. 491, 109 S.E.2d 12 (1959), the court did state that “ [assumption of risk, in its true sense, rests in contract, not tort,” but the court did not exclude its application to other noncontractual situations. In Cooper a contractual relationship did actually exist in which plaintiff was employed by defendant to install a wiring system around defendant’s farm. In the course of such work plaintiff was injured; he sued in tort for his injuries. The court was not concerned with a non-contractual relationship and its decision must be limited to the facts of the case. No mention was made of Baker v. Clark, supra, 103 S.E.2d 395, and we must assume its holding is still the law of South Carolina. Lawless v. Fraser, 244 S.C. 501, 137 S.E.2d 591 (1964), also relied upon by-plaintiffs, dealt with the question of ordinary negligence and contributory negligence and did not discuss the defense of assumption of risk, but merely stated that it was not applicable under the circumstances, relying on Cooper v. Mayes. In Lawless plaintiff was an employee of a service station and was injured while attempting to start the stalled automobile of defendant, a service station customer. Defendant had instructed him to stand on the bumpers of his car and a service truck while his car was being pushed. Defendant promised to warn him at the time the cars were separated. No warning was issued and plaintiff was injured when he fell in the path of the truck. It was found that plaintiff was not guilty of contributory negligence in standing on the bumpers and that he acted reasonably in reliance on defendant’s promise to warn. In stating, without explanation, that the defense of assumption of risk was not there applicable the court was not necessarily holding that it could not be asserted as a legal defense to such action under proper circumstances. The court did not mention Baker v. Clark, supra, or other South Carolina authorities in point. Honea next complains that the court erred in its instruction on assumption of risk by using the following language: “When one takes employment under another, he assumes the natural and ordinary risks of such employment.” It is contended that this language misled the jury into believing that plaintiff was a common-law employee or a “statutory employee” of defendant, Pulp Company, and that he had assumed the risks pursuant to such employment when, in fact, he was an invitee. The Workmen’s Compensation Act (Code of Laws of South Carolina, § 72-111 [1962]) of South Carolina provides that when an owner enters into a contract whereby another undertakes to perform or execute any work which is a part of the owner’s trade, business or occupation, the owner shall be liable to pay to any workman employed in the work any compensation under the Act which the owner would have been liable to pay if the workman had been immediately employed by the owner. Defendant was asserting as an affirmative defense that Webb was performing work which was a part of Pulp Company’s usual trade, business or occupation, that Honea, Webb’s employee, was injured in the course of such work, had been paid all benefits provided by the Workmen’s Compensation Act and was therefore precluded from bringing suit against Pulp Company. It was argued that since defendant raised the defense of Honea’s status of “statutory employee” under the Workmen’s Compensation Act the one sentence above quoted tended to resolve that question for the jury. In his brief Honea states: “The trial judge over objection of plaintiff * * instructed and submitted to the jury a charge on the doctrine of assumption of risk.” (Emphasis added.) It is true that the trial judge advised counsel as to the substance of the matters to be covered by the charge. Honea’s counsel indicated a general objection to the giving of an instruction based upon the doctrine of assumption of risk. However, subsequent to the charging of the jury, there was no objection interposed by counsel to that part of the charge as above quoted which is now attacked as erroneous, confusing and misleading. The very first challenge to that particular portion of the charge now attacked was asserted on Honea’s motion to set aside the verdict and for a new trial. Rule 51 F.R.Civ.P. clearly states that no party may assign as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. The very purpose of the rule is to give the trial judge the opportunity to correct any error brought to his attention before the case is submitted to the jury for decision. Thus it appears that Honea failed to comply with the provisions of Rule 51. In any event, we find no merit in the plaintiff’s contention respecting errors in the charge to the jury. The charge is to be considered as a whole and it is improper to consider a single sentence or word in isolation. Upon a review of the entire charge it appears that the jury could not have been left in doubt concerning the fact that plaintiff was not,,.in any sense, an employee of the defendant Pulp Company but was an invitee. Excerpted from the court’s charge is the following: “I further charge you as a matter of law that under the facts of this case, at the time of the subject accident, plaintiff Ben T. Honea was an invitee upon the premises of the owner-defendant West Virginia Pulp and Paper Company. “Under the law, a property owner, such as the defendant in this case, owes to an invitee, such as the plaintiff Ben T. Honea, the duty of ordinary and reasonable care to provide him a safe place to work. • * * Plaintiff complains of the court’s refusal to submit to the jury an issue with respect to defendant’s willful, wanton and reckless misconduct. It is agreed that under South Carolina law plaintiff’s own negligence would not bar his recovery if defendant were guilty of willful, wanton and reckless misconduct. Honea argues that defendant retained exclusive control of the lowerator while Webb and its employees were working in the plant and that defendant’s failure to maintain a guard to operate its safety device could be found by a jury to be a willful, wanton, reckless and conscious disregard of plaintiff’s rights. Plaintiff points to a decision of this court construing South Carolina law which held that in South Carolina a case of willfulness justifying punitive damages will lie when the wrongdoer does not actually realize that he has invaded the rights of the plaintiff if he does the act in such a manner that a person of ordinary prudence would say that it was a reckless disregard of another’s rights. Pepsi-Cola Distributors of Charleston, Inc. v. Barker, 274 F.2d 372, 375 (4 Cir. 1960). That case involved an automobile accident in which plaintiff was injured and the evidence was such that the jury could find that defendant’s servant failed to observe a red light and had failed to maintain a proper lookout. This decision relies in part on Hicks v. McCandlish, 221 S.C. 410, 70 S.E.2d 629 (1952), another case involving an automobile accident. There the Supreme Court of South Carolina discussed the relevant cases defining willful, wanton and reckless misconduct and stated that, under the law of South Carolina, exemplary damages may be awarded when the wrongdoer is not conscious of his invasion of the plaintiff’s rights if the act is done in such a manner that a person of “ordinary reason and prudence would say that it was reckless disregard of the rights of the plaintiff.” 70 S.E.2d at 631. However, these cases and subsequent South Carolina decisions are either concerned with automobile accidents, or the failure of a safety device, such as a railroad crossing signal. In South Carolina an automobile has been judicially held to be a dangerous instrumentality. Yaun v. Baldridge, 243 S.C. 414, 134 S.E.2d 248 (1964). Even mere inattention by the operator of an automobile has been held to raise a jury issue as to his willfulness, wantonness and recklessness. Shearer v. DeShon, 240 S.C. 472, 126 S.E.2d 514 (1962). In the instant case defendant owed a duty to Webb and Webb’s employees as invitees to provide them with a safe place in which to work and to warn them of any hidden dangers. The evidence is uncontradicted that defendant notified Webb through the latter’s supervisor, Keith Griffin, and its foreman, Travis Griffin, that the lowerator would be in normal operation and that a warning bell would be sounding continuously when the apparatus was in use. It is uncontradicted that the lowerator ascended and descended numerous times while Honea was working in and about the excavation, that it was not concealed from view but was open and obvious and that the warning bell was sounding when it was in motion. The excavation in which the rollout table was being installed was adjacent to the lowerator shaft as clearly demonstrated by his position at the time of his injury. Honea denied that the Griffins warned him of the lowerator and its continued use, but they testified to the contrary. Under these circumstances we reach the conclusion that Pulp Company was not required to seek out all of Webb’s employees and warn each of them of the lowerator or any other patent danger incident to working on the premises. We hold that Pulp Company had a right to rely upon Webb’s supervisory personnel to relay the warning notice, which they had received, to Webb’s other employees who were at all times under Webb’s sole direction and supervision. An owner or occupier of land or buildings owes to persons invited upon the premises the duty of exercising reasonable care for their safety and must warn them of hidden dangers of which they are unaware. However, he need not warn them of open and obvious dangers which would be discovered through the exercise of reasonable diligence and care. Bruno v. Pendleton Realty Co., 240 S.C. 46, 124 S.E.2d 580, 95 A.L.R.2d 1333 (1962); Baker v. Clark, supra, 103 S.E.2d 395; Bolen v. Strange, supra, 6 S.E.2d 466. Honea’s denial that he was warned by his supervisors does not create a jury issue as between Honea and the defendant on the question of willfulness, wantonness and recklessness. This is not a case where the owner had exclusive control over the contractor or its employees. The uncontradicted evidence indicates that Webb, not the Pulp Company, had the right to direct Honea’s activities. Thus the instant case is clearly distinguishable from the decision in Trent v. Atlantic City Electric Co., 334 F.2d 847 (3 Cir. 1964), cited and relied upon by Honea. In Trent the injured plaintiff was an employee of a subcontractor that was subject to the control of the defendant owner with regard to all phases of the work being done on defendant’s premises. Trent did not involve the issue of willful, wanton and reckless misconduct and plaintiff received no punitive damages. Here defendant retained control of its lowerator for use in its regular operations but this cannot serve to enlarge the duty owed to its invitees. There was an issue as to whether defendant was negligent in its operation of the lowerator and the jury, under proper instructions, obviously resolved the issue against the injured plaintiff. Affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES v. LUTZ. No. 8564. Circuit Court of Appeals, Third Circuit. Argued April 4, 1944. Decided May 15, 1944. Louis B. LeDuc, of Camden, N. J. (Milton C. Nurock, of Camden, N. J., and Isidor Ostroff, of Philadelphia, Pa., on the brief), for appellant. Thomas J. Curtin, of Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellee. Before JONES, GOODRICH, and Mc-LAUGHLIN, Circuit Judges. GOODRICH, Circuit Judge. The defendant was indicted on two counts for buying and selling Maine selected seed potatoes at prices higher than the maximum price permitted by Maximum Price Regulation No. 271 and § 4 of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 904(a). Pie was acquitted on the second count for selling, but found guilty on the first count which charged him with having “bought and received” seed potatoes at prices above the permitted máximums. Defendant has appealed from the judgment of conviction and sentence. The underlying facts giving rise to the prosecution are not disputed. Defendant is a produce wholesaler in the city of Philadelphia. On April 19 certain individuals offered to sell him a hundred bags of No. 1 Maine selected seed potatoes and fifty bags of No. 2 Maine selected seed potatoes. The terms of the transaction were cash upon delivery. The price to be paid for the No. 1 seed potatoes was $6.50 per cwt. and for the No. 2, $4.55 per cwt. The potatoes were delivered to the defendant late in the afternoon on the same day. Defendant did not have the cash on hand to pay for them. He gave the sellers his check drawn to the •order of cash in the amount of $877.60 with the understanding that he would go with one of the sellers to the bank the next morning and secure the cash for them. Pursuant to this arrangement one of the sellers called at defendant’s premises the following morning and was told to return an hour later. He returned but was again told to come back. When he came back for the third time, about 10:30 A.M., an O.P.A. agent was on the premises and took possession of the check for the $877.60. This check remained in the possession of the O.P.A. and has never been cashed. However, after the intervention of the O.P.A. in the transaction, defendant paid the sellers $510.90 for the potatoes. This sum was not in excess of the established maximum prices. Defendant contends that there was a failure to show that any maximum price regulation applicable to seed potatoes existed at the time the offense is charged to have been committed. This contention cannot be sustained. Maximum Price Regulation 271, covering certain perishable food commodities, was promulgated November 7, 1942, and became effective November 9, 1942. 7 Fed.Reg. 9179 (1942). It applied to “All white potatoes used for human consumption, not including seed potatoes,” as defendant points out. § 1351.-1001(a) (1). However, it was amended a number of times after its initial promulgation. Paragraph 1 of Amendment 5, 8 Fed.Reg. 3397 (1943), made Maximum Price Regulation 271 applicable to “All white potatoes, whether used for human consumption or as seed potatoes.” Paragraph 2(3) reads “Appendix C sets forth maximum prices for seed potatoes which were previously exempt from this regulation.” Paragraph 3 provides “Section 1351.1003(d) is added to read as follows: (d) All intermediate sellers as defined in this section, who sell seed potatoes shall compute their prices under Appendix C.” Section 1351.1019 as added by paragraph 7 deals with Appendix C. Subsection (a) thereof states that “Maximum prices for the sale of seed potatoes in bulk by farmers and in sacks * * * by country shippers * * * and intermediate sellers are established in this Appendix C.” Subsections (c) and (d) state the method for computing the maximum prices to be charged by country shippers for sales of certified or selected seed potatoes. Subsection (e) states the method for computing the maximum prices for certified or selected seed potatoes to be charged by intermediate sellers. Paragraph (4) of subsection (f) requires the seller of seed potatoes to furnish an invoice stating that the selling price does not exceed the maximum price. Subsection (h) defines seed potatoes. Amendment 5 became effective March 19, 1943, one month before the offense charged was alleged to have been committed. Further amendments to Maximum Price Regulation 271, prior to April 19, 1943, did not exempt seed potatoes from Maximum Price Regulation 271 but merely added to and further amended the provisions covering seed potatoes as promulgated by Amendment 5. See: Amendment 6, 8 Fed.Reg. 3733 (1943), effective March 24, 1943; Amendment 8, 8 Fed.Reg. 4725. (1943), effective April 8, 1943. There can be no doubt therefore that on April 19, 1943, when defendant entered into the transaction in question, Maximum Price Regulation 271 as amended applied to seed potatoes such as were involved in. the transaction. Intermediate sellers had to sell seed potatoes at prices not in excess of certain maximum prices. Defendant’s vendors came within this classification. The government contends that, allowing the benefit of every possible markup permitted under the regulation to an intermediate .seller in computing .his maximum prices, it is clear that the prices for which the potatoes were to be purchased by the defendant were substantially beyond the ceiling prices allowed by Maximum Price Regulation 271. Defendant, per contra, contends that there were fatal infirmities in the proof of the ceiling price at the trial. The prosecution had an investigator of the O.P.A. testify on this issue. The United States Attorney asked of him: “What is the ceiling price of No. 1 Maine selected potatoes? For a cash and carry wholesaler, after the first resale? ***** ■“A. * * * $4.78 * * * per/cwt bags. “Q. * * * and now on the No. 2’s: * * * * * “A. $4.30 per/cwt. bag. * * ” The defect defendant points to is the fact that the question as phrased did not refer to “seed” potatoes, and thus no ceiling price was established for No. 1 and No. 2 Maine selected seed potatoes. However, full examination of the investigator’s testimony discloses that the figures he stated pertained to No. 1 and No. 2 Maine selected seed potatoes. The investigator did not, in his testimony, go into a detailed explanation of how he arrived at the figures he stated. In a brief filed with this Court, the step by step calculations were set out along with the sections of Maximum Price Regulation 271 relied upon. Defendant in a reply brief challenges the interpretations placed upon some of these sections, their applicability to the facts and hence the figures arrived at. We do not, however, share the view that there was a mistake in the sections relied upon or the results reached in applying them. Further, the defendant had an opportunity in the court below to cross-examine the O.P.A. investigator and by this and his own evidence to prove that the regulations did not apply to the facts or that the calculations were erroneous. This counsel for defendant failed to do so that there was nothing before the jury but the figures offered by the government which the jury, by its verdict, accepted as correct. The defendant also, in effect, now questions the admissibility of the statements that ceiling prices were $4.78 and $4.30 per cwt. Maximum Price Regulation 271 does not prescribe a flat dollar and cents ceiling price for seed potatoes; it only states the methods for arriving at the ceiling price in each particular case. The figures stated by the investigator were apparently computed on this basis, as now explained to us in argument. However, numerous factors entered into this determination: various differentials, freight charges, sellers’ prices, etc. Some of these matters were issues of fact as to which the testimony of the investigator might have been inadmissible, as hearsay or as secondary evidence. The figures given by him were based on these factors and were obviously conclusions. If defendant had seasonably urged specific objections, the government would have had to adduce competent proof of the factors entering into the calculations and the correctness of the final determination. However, such objections were not urged and the court failed to request this evidence of its own motion. The rule is too well settled to require discussion that a rule of evidence not invoked is waived and that if there is a failure to object to the admission of testimony at the trial such objection will usually not be considered for the first time on appeal. To prevent a failure of justice this rule has been relaxed, especially in cases where the life or liberty of a defendant is involved. But the circumstances of this case leave no doubt that the maximum prices were violated and the jury found this violation to have been intentional. We are not to be understood as approving the method of proof used to establish the maximum prices. As evidentiary matters they were incorrectly offered into evidence. But it is too late for the defendant now to complain. Complaint is made of the fact that the various amendments to the regulation were not offered in evidence in the trial below. They were judicially noticeable, both by the express provisions of the statute providing for the Federal Register, and by precedent concerning judicial notice of action of a department of the federal government. United States v. Brown, 7 Cir., 1944, 140 F.2d 136. See Caha v. United States, 1894, 152 U.S. 211, 221, 222, 14 S.Ct. 513, 38 L.Ed. 415. The next question is whether there was sufficient evidence for the jury to find that defendant “bought and received” seed potatoes at prices above those permitted by Maximum Price Regulation 271 and whether if he did, this constitutes a violation of the regulation and the act of Congress. Defendant’s argument is that the transaction between himself and the sellers of the potatoes was a sale for cash and that title to the potatoes did not vest in him until the cash was paid. Since, at the time the O.P.A. agent interceded, the cash had not been paid for the potatoes, title never vested in the defendant and, therefore, he cannot be said to have “bought” them. The check which he gave to the vendors when they delivered the potatoes, it is said, was not intended as payment, but was merely a memorandum of the transaction until the cash could be procured. We do not think it was the intendment of the statute or the regulations promulgated thereunder to have the enforcement of the Price- Control Act turn upon technical concepts of the law of sales. The act is quite broad. It states that “It shall be unlawful * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order under section . . . or of any price schedule effective in accordance with the provisions of section 206 . . . or to offer, solicit, attempt, or agree to do any of the foregoing.” § 4(a), 50 U.S.C.A.Appendix, § 904(a). The regulation provides that it shall not be evaded “whether by direct or indirect methods, in connection with any offer, solicitation, agreement, sale, delivery, purchase or receipt of, [etc.]” Paragraph 4 of Amendment 5, supra. The judge charged the jury to find'“Did the Defendant buy and receive potatoes at prices in excess of ceiling prices ?" He did not go further and define to the jurors under what circumstances title gasses under the law of sales. Counsel for defendant did not make any requests for charge on this point, nor did he take exception to the charge. There are several answers to the contentions of the defendant on this phase of the argument. The first is that since we are concerned here with a federal statute creating a federal offense, not in terms of state law, the local law of sales is inapplicable. When a commodity is offered at a certain price for cash upon delivery and the offer is accepted and the article delivered but actual payment is postponed until the following day, the purchaser can be said to have “bought” the commodity within the meaning of the Price Control Act and the applicable • regulations. Second, even if we'assume that Congress had reference to the technical law of sales generally, there was no error in refusing to direct a verdict for the defendant. Although a sále for cashvon delivery requires the payment of cash before title passes, where the seller delivers even though the buyer does not proffer the cash, the seller may be held under certain circumstances to have waived the condition and the transfer becomes absolute. See Frech v. Lewis, 1907, 218 Pa. 141, 67 A. 45, 11 L.R.A.,N.S., 948, 120 Am.St.Rep. 864, 11 Ann.Cas. 545; 3 Williston on Contracts, Rev.Ed.1936, §§ 730-733. We cannot say that as a matter of law, under the present' facts there was not such a waiver. The question was for the jury. The defendant himself testified that he was approached to buy some potatoes and that he “bought them at the price—” These and other facts were properly submitted to the jury and defendant cannot complain of a failure to charge that which he did not request. Third, there is a sufficient additional basis to uphold the verdict of the jury. The statute makes it unlawful “to buy or receive”. The indictment charged the defendant with having “bought and received”. Thus under the act it is unlawful if one (1) buys a commodity in violation of the act and regulations or (2) receives a commodity in violation of the act and regulations. The commission of either one of these acts, alone, is unlawful. Since the indictment charges both, conjunctively, proof of either one of them is sufficient to support a finding of guilt. Here it is undisputed that the defendant received potatoes under an agreement and it was proved that the prices specified in that agreement were above those permitted at the time the potatoes were delivered. At the moment defendant so received them the statute was violated. The defendant has stressed that ultimately he in fact paid for the potatoes at prices permitted by Maximum Price Regulation 271. As just stated, however, the offense already had been committed prior to that time. Payment was made after the O.P.A. had intervened. Prior to payment defendant had hound himself to pay at prices above those permitted and had received the commodities. Cf. Henderson v. Glasser, D.C.W.D.PaP.1942, 46 F.Supp. 460. Affirmed. § 1351.1003 (a) defines “intermediate sellers”: “For the purposes of this regulation ‘intermediate sellers’ are divided into the following classes and the term means any wholesale seller, including, but not limited to terminal distributors, service and cash-and-carry wholesalers, carlot receivers, jobbers or any other person who purchases for the purpose of reselling, except country shippers and retailers, and who take title and make sales to any person who is not the ultimate consumer. The term ‘ultimate consumer’ does not include institutional, commercial or industrial users. (1) Class 1: Retailer-owned cooperative wholesaler. ♦ * * (2) Class %: Cash and ccn-ry wholesalers. A cash and carry wholesaler is a wholesaler not in Class 1 who distributes food commodities for resale or to commercial, industrial and institutional users without materially changing their form and who does not customarily deliver or extend credit. (3) Class 8: Service wholesalers. A service wholesaler is a wholesaler not in Class 1 who distributes food commodities for resale or to commercial, industrial or institutional users without materially changing their form and who customarily delivers, or delivers and extends credit to purchasers.” 7 Fed. Reg. 9180 (1942). Defendant’s counsel asked whether the investigator had a- record of prices in court. The investigator answered that he had the computations he had made and the regulations with him. As distinguished from a substantive rule of law, such as the “parol evidence” rule. 1 Wigmore on Evidence, 3rd Ed. 1940, § 18. Some recent decisions on this point are: United States v. Maggio, 3 Cir., 1942, 126 F.2d 155, certiorari denied 1942, 316 U.S. 686, 62 S.Ct. 1275, 86 L.Ed. 1758; Simon v. United States, 4 Cir., 1941, 123 F.2d 80, certiorari denied 1941, 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555; Hilliard v. United States, 4 Cir., 1941, 121 F.2d 992, certiorari denied 1941, 314 U.S. 627, 62 S.Ct. 111, 86 L.Ed. 503; Beausoliel v. United States, 1939, 71 App.D.C. 111, 107 F.2d 292; Reavis v. United States, 10 Cir., 1939, 106 F.2d 982. See: Mumforde v. United States, 1942, 76 U.S.App.D.C. 107, 130 F.2d 411, certiorari denied 1942, 317 U.S. 656, 63 S.Ct. 53, 87 L.Ed. 527; Miller v. United States, 10 Cir., 1941, 120 F.2d 968; Hayes v. United States, 10 Cir., 1940, 112 F.2d 676; Benson v. United States, 5 Cir., 1940, 112 F.2d 422, certiorari denied 1940, 311 U.S. 644, 61 S.Ct. 43, 85 L.Ed. 411. 44 U.S.C.A. § 307. The court, apparently of its own motion, granted an exception to counsel for defendant to additional instructions given to the jurors at their request. Crain v. United States, 1896, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097 (overruled on another point in Garland v. State of Washington, 1914, 232 U.S. 642, 34 S.Ct. 456, 58 L.Ed. 772); Troutman v. United States, 10 Cir., 1939, 100 F.2d 628, 631; Shepard v. United States, 9 Cir., 1916, 236 F. 73, 81, 82; United States v. Hall, C.C.S.D.Ala.1871, 26 Fed.Cas. pages 79, 82, No. 15,282. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES v. GWIN. SINGLETON v. UNITED STATES. UNITED STATES v. HENNING. Nos. 6310, 6337, 6415. Circuit Court of Appeals, Sixth Circuit. Dec. 15, 1933. No. 6310: Claude Hudgins, of Louisville, Ky., and W. C. Pickett, of Washington, D. C. (Frank A. Ropke, Geo. R. Brown, Jr., and T. J. Sparks, all of Louisville, Ky., and Davis G. Arnold and C. L. Dawson, both of Washington, D. C., on the brief), for the United States. Perry B. Miller, of Louisville, Ky. (Arthur C. Gunther, of Louisville, Ky., on the brief), for appellee. No. 6337: Charles L. Neely, of Memphis, Tenn. (Leslie Darden, on the brief), for appellant. Joseph M. Bearman, of Memphis, Tenn. (William McClanahan and R. G. Draper, both of Memphis, Tenn., and C. L. Dawson, of Washington, D. C., on the brief) for the United States. No. 6415: Joseph M. Bearman, of Memphis, Tenn. (Dwyane D. Maddox and Bailey Walsh, both of Memphis, Tenn., and H. C. Murchison, of Jackson, Tenn., on the brief), for the United States. Charles L. Neely, of Memphis, Tenn. (Mahlon M. Meeker, of Memphis, Tenn., on the brief), for appellee. Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges. HICKENLOOPER, Circuit Judge. Appeal No. 6310 is from a judgment for plaintiff in an action upon a policy of war risk insurance, the assertion of the right to recovery being predicated upon the claim that the insured, at the time of the alleged lapse of his policy, immediately following his discharge from the Army in 1919, was totally and permanently disabled, and that the policy had therefore matured before lapse. A jury was waived, the case was tried to the court below upon the testimony of witnesses and a stipulation of additional facts, both sides moved for judgment at the dose of the evidence, and upon rendering judgment the court made separate findings of fact, a,nd separately stated its conclusions of law thereunder, to which findings of fact and conclusions of law the defendant duly excepted. The sole question presented on this appeal, which question we think was properly preserved for our consideration, is whether, in view of the work record of the insured, the court erred in finding that he was totally and permanently disabled at the time of his discharge. Somewhat differently expressed, the question is whether that work record necessarily and as a matter of law required entry of judgment for defendant. Counsel for plaintiff contends that, inasmuch as the plaintiff introduced substantial evidence of the insured’s total disability, by reason of incipient dementia prseeox, at the time of the alleged lapse of his policy, and of a continuance of this mental disorder, manifested by more or less pronounced symptoms, up to the present time, at which time it is conceded the insured is totally and permanently disabled, this court is not concerned with the relative weight of the evidence, but must affirm the fact finding of the court below. The fallacy of this argument lies in the second, premise, that a continuance of the insured’s mental disorder, from the time symptoms of it were first noticed down to the present time, is proof of, or substantial evidence tending to prove, a continuance of the earlier existing total disability (in all its totality) in the face of evidence that for a quite substantial period of time the insured was able to and did support himself by his own labor in the field in which he had formerly been employed. In Bartee v. United States, 60 F.(2d) 247, 248, this court held that the word “continuously” in Regulation 11, defining total disability as “any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation,” was used in the sense of “with reasonable regularity”; that by “substantially gainful occupation” was meant some “substantial portion of the work of the world in regular competition with others”; and that “impossible,” as contained in the regulation, meant without “the risk of serious physical injury resulting from such work.” This pláees the whole matter of interpretation of Regulation 11 upon both humanitarian and utilitarian grounds; a man should not be prejudiced by working when in justice to his own well-being he should not be doing so, or where he works only at the risk of serious personal injury to himself. So also, he should not be required to pay the premiums upon his contract of insurance unless, during substantial periods of time subsequent to the alleged lapse of the policy, he was able to earn his own living, in whole or in substantial part, by doing a material portion of the world’s work, working with reasonable regularity and for a substantial compensation. In the above construction of Regulation 11, we have added to its meaning as stated in the Bartee Case only the element that if, between the cessation in payment of premiums and the conceded, subsequent, permanent, total disability, a “substantial period of time” occurs during which the insured was able “to follow continuously any substantially gainful occupation,” as that clause has already been defined, then any disability existing before such period of time, even though it was then to be regarded as a total disability, may not, as a matter of law, be held to have been permanently total as of the earlier date. . This distinction we think implicit in both the War Risk Insurance Act and the terms of thé issued insurance certificate, for it is not total disability alone against which the soldier was insured, but only that total disability which was permanent in its nature; and we think that the words “total permanent disability” of the act (40 Stat. 409) require that such disability be both permanent and total for the entire period; that is, a permanent total disability. It should also be noted that the dissent in the Bartee Case was based, not so much upon the statement of the rule, as upon its application to the facts of that specific case. This, then, would furnish a rule by which the eases which most frequently arise might be decided. There are, of course, a great number of maladies which are or may be steadily progressive, but which are not wholly incapacitating in their early stages. There are others which, though properly to be considered as total disabilities in the incipient stages, are often arrested to the extent that the patient may thereafter lead an industrious and a useful life. Pulmonary tuberculosis is one of the commonest of the latter class. Compare Falbo v. United States, 64 F.(2d) 948 (C. C. A. 9). Regulation 11 provides that “ ‘total disability’ shall be deemed to be ‘permanent’ whenever it is founded upon conditions which render it reasonably certain that it will continue throughout the life of the person suffering from it.” This, .we think, is no more than a definition of those facts which, prospectively, will justify an inference of the permanency of the total disability. When, however, this inference is inconsistent with the undisputed facts, as where it appears that the plaintiff, after his initial total disability, has so far regained his health as to be able to earn his own living for a substantial period of time, thus showing that, in so far as the disability was permanent, it was at best partial, and, in so far as it was total, it was at best temporary, whatever inference might otherwise be justified under Regulation 11 must fail because of such inconsistency. Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333, 341, 53 S. Ct. 391, 77 L. Ed. 819. What amounts to a really substantial period of time is also a question ordinarily to be determined in each case, bnt it seems manifest to us that a period of several years must be regarded as substantial in duration. In United States v. Scott, 50 F.(2d) 773, 774, we held that it could not bo said, as a matter of law, that nine months employment in a minor clerkship was conclusive proof of ability to “follow continuously a substantially gainful occupation.” This is not inconsistent with the position here taken, for there, as in the Bar-tee Case, the period of continuous employment, and of earning capacity, was not, all things considered, regarded as of substantial duration. In the instant case, the insured was regularly and continuously employed by the Railway Express Company, at Terre Haute, Ind., as a traiñeman and chauffeur, from August 1, 1920, to January 12, 1925, a period of over four years and five months. This we think meets the test of continuous employment at a substantially gainful occupation, and definitely aligns the case with our deeisicns in United States v. Cole, 45 F.(2d) 339, and United States v. Lyle, 54 F.(2d) 357. The judgment of the District Court is accordingly reversed, and the canse is remanded for a new trial. In No. 6337 plaintiff in the court below appeals from a judgment entered upon a verdict directed for defendant. In this ease the plaintiff had been employed as an assistant storekeeper at the Government Marine Hospital No. 88 in Memphis Cor a period of about eight years. _No_claim is made that he was not, during this time, able to attend to the duties assigned him with reasonable regularity, or that the employment was not to be regarded as “substantially gainful.” For the reasons already stated, we are of the opinion that the judgment in this cause must he affirmed, and it is so ordered. In Umted States appeals from a judgment allowing recovery on a policy of war risk insurance which was permitted to lapse immediately following the insured’s discharge from the Army. The undisputed evidence showed that the insured fiad been employed for some seven years, 1923 to 1930, as a mechanic and machinist, at the compensation normally paid for such labor, and with the same degree of regularity of employment as enjoyed by other high-grade ■workmen. The only evidence of total disability at the time of the lapse of the policy was an N-ray plate which one expert thought showed an old tuberculosis then “slightly acjf®-” TWs Piotapf was taken “ ^21, more than two ^ tlle laP3e ^ P0^» “d, even though it be conceded that the in™'f 'vas ylth foipient tuberculosis at that thls 13 less ^ a ?el^!la of T dence tendlnS to Prwe total .Usability at the tlme of laPse ,tke P01^ f a Pf™f nen°y total disability from that time to the Present‘ Tlie ^d8'mcnt of the District Court 18 reversed, and the cause remanded for a new trial. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES of America, Plaintiff-Appellant, v. Rene Martin VERDUGO-URQUIDEZ, Defendant-Appellee. No. 87-5061. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 10, 1987. Decided Aug. 29, 1988. Roger W. Haines, Jr., Asst. U.S. Atty., Crim. Div., San Diego, Cal., for plaintiff-appellant. Michael Pancer and Patrick Q. Hall, San Diego, Cal., for defendant-appellee. Before WALLACE, NORRIS and THOMPSON, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: Rene Martin Verdugo-Urquidez is in custody awaiting trial on twenty counts of a forty-one-count indictment returned against him and thirty-eight other defendants. The indictment charges Verdugo-Urquidez with numerous narcotics and narcotics-related criminal violations, including conspiracy to import multi-ton quantities of marijuana into the United States, possession with intent to distribute multi-ton quantities of marijuana, and engaging in an on-going criminal enterprise. Verdugo-Urquidez’s presence in the United States is the result of his arrest by Mexican police officers in Mexico and his delivery by them, across the border, into the waiting arms of the United States government. Verdugo-Urquidez challenged the district court’s jurisdiction over him because of the manner in which the United States obtained his custody. The district court rejected this contention, and Verdugo-Urquidez has not sought to appeal that ruling. The government appeals from the district court’s order suppressing certain evidence obtained by United States Drug Enforcement Agency (“DEA”) agents during their search of Ver-dugo-Urquidez’s residence in Mexicali, Mexico. The government raises two major arguments on appeal. First, the government contends that Verdugo-Uriquidez, a Mexican national, may not invoke the fourth amendment to the Constitution to challenge the DEA’s actions in searching his Mexicali home. In the alternative, the government argues that even if the fourth amendment extends to Verdugo-Uriquidez, the evidence seized nonetheless should have been admitted because the DEA agents reasonably relied on assurances of Mexican officials that the search was permissible under Mexican law, and the search was carried out in a reasonable manner. We have jurisdiction of this interlocutory appeal under 18 U.S.C. § 3731. We conclude that Verdu-go-Urquidez is entitled to the protections of the fourth amendment, and that the district court properly suppressed the evidence obtained in the search of his Mexicali residence. I FACTS Rene Martin Verdugo-Urquidez is reputed to be a drug smuggler and a killer. The DEA believes him to be one of the leaders of a large and violent organization based in Mexico, which smuggles large quantities of marijuana, cocaine and heroin into the United States. The DEA also believes Verdu-go-Urquidez to have participated in the brutal and revolting kidnapping and torture-murder of DEA Special Agent Enrique Camarena Salazar. If these allegations are proved true at trial, there is little doubt that Verdugo-Urquidez’s conduct has placed him beyond the pale of civilized society. But in this country, a person is presumed innocent until proven guilty. We would not permit a jury to discard this fundamental precept of criminal law simply because the accused is charged with a serious crime. Likewise, we will not allow ourselves to be swayed by the DEA’s suspicions, no matter how well founded, or by the government’s repeated assertions, that Verdugo-Urquidez is in some way responsible for the death of Special Agent Ca-marena. Since the late 1970s, the DEA has kept abreast of Verdugo-Urquidez’s alleged activities as a drug smuggler. Based on an informant’s tip that Verdugo-Urquidez planned to transport several tons of marijuana into the United States, the DEA filed a sealed complaint against him on August 3, 1985, charging him with various violations of the criminal laws of the United States. Based on this complaint, the United States District Court for the Southern District of California issued a warrant for his arrest. Thereafter, the DEA stepped up its investigation efforts and attempted to apprehend Verdugo-Urquidez on one of his frequent trips to the United States. Unable to locate him in this country, the DEA confirmed that Verdugo-Urquidez resided in Mexicali, Mexico, and contacted the United States Marshals Service to determine whether it would be feasible for Mexican authorities to apprehend Verdugo-Ur-quidez in Mexico and deliver him to the United States for trial. In January 1986, the United States Marshals Service contacted Mexican law enforcement officers, who advised the Service that Verdugo-Urquidez could be arrested by Mexican officers in Mexico, provided there was an outstanding United States warrant for his arrest. The Marshals showed the Mexican officers the warrant for Verdugo-Urquidez’s arrest. The district court found that the following events then took place: On January 24, 1986, while driving his car in San Felipe, Baja California, Mexico, Verdugo-Urquidez was stopped by six Mexican police officers, at least one of whom showed him a badge. Verdugo-Urquidez was ordered from his car, arrested, handcuffed and placed in the back seat of the Mexican officers’ unmarked car. With his hands still cuffed behind his back, the police forced Verdugo-Urquidez to lie face down on the car seat, with his head covered by his jacket. For most of the two-hour ride to the Mexiean-American border, Verdugo-Urquidez either lay on the seat covered with his jacket or lay there blindfolded. At no time did the Mexican police officers explain to Verdu-go-Urquidez where they were going or why he had been arrested. When the Mexican officers arrived at the border, they removed Verdugo-Urquidez from their car and walked him to where United States Marshals waited. The Marshals placed Verdugo-Urquidez under arrest and drove him to the United States Border Patrol station in Calexico, California. The Marshals then phoned the DEA’s resident agent in Calexico, Terry Bowen, who testified he had been waiting for the call informing him of Verdugo-Urquidez’s arrest. The DEA took custody of Verdugo-Urqui-dez and delivered him to the Metropolitan Correctional Center in San Diego, California, where he remains incarcerated pending trial. After the DEA took custody of Verdugo-Urquidez, Agent Bowen discussed with his fellow officers the prospect of searching Verdugo-Urquidez’s house in Mexico. Agent Bowen believed that a search of Verdugo-Urquidez’s Mexicali residence would disclose cash proceeds from his smuggling operations, as well as documentary evidence of those transactions, including drug ledgers and phone books listing the names and addresses of his associates. Agent Bowen also hoped that the search would disclose information relevant to the Camarena investigation. Agent Bowen contacted Walter White, the Assistant Special Agent in charge of DEA operations in Mexico. Agent Bowen and Special Agent White discussed the arrest of Verdugo-Ur-quidez and the possibility of a DEA search of Verdugo-Urquidez’s Mexicali residence. Special Agent White told Agent Bowen that he would make some phone calls and would see what could be done. Thereafter, Agent Bowen received Special Agent White’s approval to search the Mexicali residence. On January 25, 1988, a team of four DEA agents drove to Mexicali, Mexico, where they met with the local commandante of the Mexican Federal Judicial Police (MFJP). With the help of several MFJP officers, the DEA searched Verdu-go-Urquidez’s Mexicali residence, as well as a house owned by Verdugo-Urquidez located in San Felipe, Baja California, Mexico. The search of the Mexicali residence disclosed a tally sheet, which purportedly reflects the quantities of marijuana smuggled into the United States by Verdugo-Ur-quidez. Verdugo-Urquidez moved to suppress the evidence seized from his Mexicali residence. After a hearing, the court concluded that the fourth amendment to the Constitution applied to the DEA’s search because it was a “joint venture” of the American and Mexican police officers. Furthermore, the court held that a foreign national is entitled to seek the suppression of evidence seized by American officers during a search conducted in a foreign country on the ground that the search violates the norms established by the fourth amendment. The district court then suppressed the evidence seized by the DEA because it concluded the search was invalid for two reasons: First, the DEA failed to seek a warrant authorizing the search. Second, even if a warrant was not required to authorize the search, the DEA’s conduct in carrying out that search was not reasonable because the search was unconstitutionally general, it occurred after midnight and the DEA failed to leave a contemporaneous inventory of the evidence seized. The government appeals. II ANALYSIS Applicability of Fourth Amendment The threshold issue we confront is whether a foreign national whose foreign residence has been searched by United States law enforcement officers may challenge that search under the fourth amendment. Strangely enough, this question has not yet been answered by the Supreme Court or definitively resolved by any circuit court of appeals. Indeed, until this case, we have been content simply to assume that the fourth amendment constrains the manner in which the federal government may pursue its extraterritorial law enforcement objectives. See, e.g., United States v. Peterson, 812 F.2d 486, 489 (9th Cir.1987). 1. The Fourth Amendment Limits Government Action Abroad We begin our analysis with a proposition so reasonable and unremarkable that most people would find it bizarre indeed to learn that the rule has ever been otherwise: The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another country. Reid v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1957) (plurality opinion) (footnotes omitted); see also id. at 56, 77 S.Ct. at 1251 (Frankfurter, J., concurring in the result) (“Governmental action abroad is performed under both the authority and the restrictions of the Constitution.”); cf. id. at 66, 77 S.Ct. at 1256 (Harlan, J., concurring in the result) (“The powers of Congress ... are constitutionally circumscribed. Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers.”). And yet, for a time, it was settled law that the Constitution applied “only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.” In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) (emphasis added). This was said to be so because “[b]y the Constitution, a government is ordained and established ‘for the United States of America,’ and not for countries outside of their limits.... [Therefore, the] Constitution can have no operation in another country.” Id. (citations omitted). The Supreme Court soon rejected this constrictive interpretation of the Constitution in favor of a more expansive vision of its reach. See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 348, 66 L.Ed. 627 (1922) (“The Constitution of the United States is in force in Porto Rico [sic] as it is wherever and whenever the sovereign power of that government is exerted.”). In its Reid decision, the Court extended the Constitution’s application to acts by the federal government in a foreign country. Reid, 354 U.S. at 7-9, 77 S.Ct. at 1225-26; see also Note, The Extraterritorial Application of the Constitution—Unalienable Rights?, 72 Va.L.Rev. 649, 659 (1986) (“[T]he Reid decision ... represents the abandonment of the nineteenth century concept of strict territoriality.”). In so construing the reach of the Constitution, a plurality of the Court rejected the notion that “only those constitutional rights which are ‘fundamental’ protect Americans abroad.” Reid, 354 U.S. at 9, 77 S.Ct. at 1226 (plurality opinion) (footnote omitted). From these cases, a proposition of enormous vitality may be drawn: The Constitution imposes substantive constraints on the federal government, even when it operates abroad. See, e.g., Saltzburg, The Reach of the Bill of Rights Beyond the Terra Firma of the United States, 20 Va.J.Int’l L. 741, 745 (1980) (“Wherever and whenever the [federal government] acts it relies on the Constitution as the source of its powers. Whenever it acts, it must, therefore, accept the limits on its power imposed by the ... Constitution_ Thus, the Bill of Rights controls the activities of U.S. law enforcement officers wherever they occur.”). In applying these substantive constitutional constraints, it is important to recall that [t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government. Reid, 354 U.S. at 14, 77 S.Ct. at 1229 (plurality opinion). Thus, in the context of this case, which involves the aggressive and laudable pursuit by the federal government of a legitimate law enforcement objective— the apprehension and prosecution of a suspected drug dealer of the worst sort — we also must take great pains to ensure that the Constitution does not become the first casualty in the “War on Drugs.” See Wi-sotsky, Crackdown: The Emerging “Drug Exception” to the Bill of Rights, 38 Hastings L.J. 889 (1987). See generally Kami-sar, “Comparative Reprehensibility” and the Fourth Amendment Exclusionary Rule, 86 Mich.L.Rev. 1 (1987). 2. Aliens Brought to United States for Criminal Trials May Challenge Federal Government’s Conduct under Fourth Amendment Having concluded that the Constitution limits the government’s authority when it acts abroad, we must address the key question in this case: May a nonresident alien challenge the reasonableness of the federal government’s actions under the fourth amendment? Under the facts of the present case, we hold that such a challenge may be raised. The government’s position in this case derives from a vision of the Constitution as a compact between the people of the United States and the federal government. This theory espouses the view that the Constitution should be regarded as a reciprocal arrangement between “The People” and the federal government. See U.S. Const, preamble (“WE THE PEOPLE of the United States ... do ordain and establish this Constitution for the United States of America.”). That is, “The People” cede to their government substantial authority over them in exchange for which the government agrees to abide by the limitations imposed on it by the Constitution. Verdu-go-Urquidez is a nonresident alien. The compact theory tells us, then, that because Verdugo-Urquidez is not one of “The Peo-pie” to whom the promise of the Constitution runs, he has no right to complain of governmental action in excess of that permitted by the Constitution. This compact theory of the Constitution has deep roots in our nation’s history. The interpretation of the Constitution as a contract also has found some expression in the courts. See, e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471, 1 L.Ed. 440 (1793) (opinion of Jay, C.J.) (“[T]he constitution of the United States is likewise a compact made by the people of the United States, to govern themselves, as to general objects, in a certain manner.”); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404, 4 L.Ed. 579 (1819) (Marshall, C.J.) (“The government of the Union ... is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit.”); League v. De Young, 52 U.S. (11 How.) 185, 202, 13 L.Ed. 657 (1850) (“The Constitution of the United States was made by, and for the protection of, the people of the United States.”); In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) (“By the Constitution a government is ordained and established ‘for the United States of America,’ and not for countries outside of their limits.... The Constitution can have no operation in another country.” (citation omitted)). The compact theory also has its adherents in the academic world. See, e.g., Stephan, Constitutional Limits on International Rendition of Criminal Suspects, 20 Va.J.Int’l L. 777, 782 (1980) (observing that there is a “long held understanding that, in general, foreign nationals abroad are neither parties to nor beneficiaries of the agreement between the federal government and its people embodied in the Constitution”). Notwithstanding these sources, we are not persuaded that the compact theory is a legitimate mode for applying the Constitution in this ease. This is so for three reasons we discuss hereafter: First, the historical evidence is equivocal and many sources may be cited in support of a broader interpretation of the Constitution. Second, the Supreme Court cases discussed above address the distinct problem of the relationship between the states and the federal government, and therefore provide little help in deciding how the federal government may act when it pursues extraterritorial objectives. Finally, decisions of the Supreme Court extending certain constitutional protections to aliens in other contexts show that the compact theory has been severely limited in its scope. a. The Historical Record As we have noted, there are historical sources that support the compact theory of the Constitution. These sources, however, reflect only part of the philosophical concerns reflected in the Constitution and the Bill of Rights. There are many historical records and commentaries explaining that Americans of the Revolutionary Era held a deeply-felt belief in the “natural rights” of man. Indeed, one need look no further than the Declaration of Independence, with its references to “the laws of nature” and “inalienable rights.” See Declaration of Independence (1776), reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 251-52 (1971). Further historical evidence of the “natural rights” theory abounds. For example, the various states’ declarations of rights that served as the forerunners of our Bill of Rights again and again emphasize that the government is to respect the individual’s natural rights. Thus, the preamble to the Vermont Declaration of Rights explains that “all government ought to be instituted and supported, for the security and protection of the community, as such, and to enable the individuals who compose it, to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man.” Vermont Declaration of Rights (1777), reprinted in 1 B. Schwartz, supra, at 319. And in enumerating the rights enjoyed by the inhabitants of Vermont, we find That the people have a right to hold themselves, their houses, papers and possessions free from search or seizure; and therefore warrants, without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted. Id. c.1, art. XI, reprinted in 1 B. Schwartz, supra, at 323. A number of other sources, from the nineteenth century to the present, support an interpretation of the Constitution that emphasizes an intent to prevent arbitrary encroachment by government on these “natural rights.” See, e.g., II J. Kent, Commentaries on American Law 1 (New York 1827) (“The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable.”). As Professor Schwartz also has explained: The dominant conception when the Framers wrote was that stated in Blackstone: “By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.” III B. Schwartz, A Commentary on the Constitution of the United States: Rights of the Person (Volume 1) 170 (1968) (emphasis in original; footnote omitted). See generally Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan.L.Rev. 843 (1978); Henkin, Rights: Here and There, 81 Colum.L.Rev. 1582, 1584-90 (1981); Note, supra, 72 Va.L.Rev. at 650 n. 8 (collecting sources). Thus, while the Framers may have used the phrase “compact” to explain the political theory by which the federal government was created, history also teaches that the Founders believed the Constitution would protect their inalienable rights. Justice Story in his Commentaries on the Constitution of the United States cast considerable doubt on the validity of the compact theory. For instance, Justice Story found it peculiar to think of the Constitution as a contract because constitutions “are not only not founded upon the assent of all the people within the territorial jurisdiction, but that assent is expressly excluded by ... [restricting] ratification ... to those, who are qualified voters.” 1 J. Story, Commentaries on the Constitution of the United States § 327, at 296-97 (Boston 1833). Thus, the Constitution may not be treated as a contract because it purports to bind those who did not assent to it, were not permitted to assent to it and, as well, those born after its ratification. Id. § 328, at 297-98. Justice Story concluded that if the Constitution protects all “The People” of the United States, as it surely does, the protection it gives them cannot derive solely from a contract theory. It would, indeed, be an extraordinary use of language to consider a declaration of rights in a constitution, and especially of rights, which it proclaims to be “unalienable and indefeasible,” to be a matter of contract, and resting on such a basis, rather than a solemn recognition and admission of those rights, arising from the law of nature, and the gift of Providence, and incapable of being transferred or surrendered. Id. § 340, at 309 (emphasis in original). b. “Compact” Theory in the Supreme Court Earlier in this opinion, we cited four Supreme Court eases which explained that the Constitution is a compact between the people and the federal government. These cases, however, provide scant guidance in deciding whether the fourth amendment permits Verdugo-Urquidez to challenge an unreasonable search of his Mexicali residence by the federal government. In three of these cases, the Court considered some aspect of the relationship between the states and the federal government. E.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793) (considering whether a state may be sued in the Supreme Court by an individual citizen of another state); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819) (holding that a state may not tax an instrumentality of the federal government properly created by Congress in pursuit of an enumerated power); League v. De Young, 52 U.S. (11 How.) 185, 13 L.Ed. 657 (1850) (holding that a statute passed pursuant to the Constitution of the Republic of Texas could not be challenged as unconstitutional because, until Texas joined the Union, it was a sovereign power not bound by the United States Constitution). Each case involved problems of federalism. The Supreme Court used the compact theory to explain that by ratifying the Constitution, the states surrendered some of their authority to the federal government. Thus, these cases cannot be considered authoritative on the question whether the Constitution applies to the extraterritorial acts of the federal government. Neither do they explain who may assert the protections of the fourth amendment. Unlike the three cases previously mentioned, In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581 (1891), was one of a different line of cases in which the Court considered the extraterritorial application of the Constitution. The Court held in Ross that because the Constitution applies only within the United States, the trial of an American citizen in an American consular court neither required indictment by a grand jury nor a jury trial. See id. at 464, 11 S.Ct. at 900. But, as we explained supra in subpart 11(A)(1), the Ross case is no longer good law in light of Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). See Reid, 354 U.S. at 5-6, 77 S.Ct. at 1224-25 (plurality opinion); id. at 56, 77 S.Ct. at 1251 (Frankfurter, J., concurring in the result). Moreover, the Ross decision actually supports Verdugo-Urquidez’s argument that the fourth amendment applies to him. The guarantees [the Constitution] affords against accusation of capital or infamous crimes, except by indictment or presentment by grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad. Ross, 140 U.S. at 464, 11 S.Ct. at 900 (emphasis added). c. Constitutional Protections for Aliens A number of cases have extended constitutional protections to resident aliens. See, e.g., Yick Wo v. United States, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (extending fourteenth amendment to resident aliens because that amendment “is not confined to the protection of citizens”); Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (1945) (Murphy, J., concurring) (emphasizing that among the protections enjoyed by resident aliens are first, fifth and fourteenth amendment rights); Kwang Hai Chew v. Colding, 344 U.S. 590, 596, 601, 73 S.Ct. 472, 477, 479, 97 L.Ed. 576 (1953) (holding that a resident alien is a “person” within the meaning of the fifth amendment). True enough, these cases may be explained by the compact theory. That is, by becoming a resident, an alien “is bound to obey all the laws of the country, not immediately relating to citizenship, during [his or her] sojourn in it.” Carlisle v. United States, 83 U.S. (16 Wall.) 147, 154, 21 L.Ed. 426 (1873); see also Radich v. Hutchins, 95 U.S. 210, 211, 24 L.Ed. 409 (1877) (“As a foreigner domiciled in the country, ... [the alien] owed allegiance to the government of the country so long as he resided within its limits.”). By accepting the obligations of allegiance to the United States, the alien receives in exchange some measure of constitutional protection. The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes a preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization. Johnson v. Eisentrager, 339 U.S. 763, 770, 70 S.Ct. 936, 939, 94 L.Ed. 1255 (1950); see also Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) (discussing Johnson with approval). On the other hand, the Court has stated that an alien seeking admission to the United States enjoys no constitutional rights. See, e.g., Landon, 459 U.S. at 32, 103 S.Ct. at 329; United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (“[An alien] does not become one of the people to whom [first amendment rights] are secured by our Constitution by an attempt to enter forbidden by law_ [T]hose who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.”). Just as it does in the resident alien cases, the compact theory adequately explains these “aliens seeking admission” decisions. The compact analysis fails, however, upon an examination of those cases in which constitutional protections have been extended to illegal aliens who are within the United States. The Supreme Court has extended significant constitutional protections to aliens within the United States, without distinguishing between those who are here legally or illegally, or between residents and visitors. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (“The Fourteenth Amendment ... is not confined to the protection of citizens.... [Its] provisions are universal in their application, to all persons within the territorial jurisdiction [of the United States].”); In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) (holding that although fifth and sixth amendments do not apply to trials conducted in consular courts, their guarantees apply to “citizens and others within the United States, or who are brought there for trial”); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (holding that “all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments”); Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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". ATHEY TRUSS WHEEL CO. v. MOORE & MOORE, Inc. No. 4241. Circuit Court of Appeals, Third Circuit. Sept. 16, 1930. On Rehearing, Feb. 9, 1931. Williams, Bradbury, McCaleb & Hinkle, of Chicago, 111., and Barnes, Biddle & Myers,' of Philadelphia, Pa. (Lynn A. Williams and Ross O. Hinkle, both of Chicago, 111., and Francis Biddle, of Philadelphia, Pa., of counsel), for appellant. C. B. DesJardins and Melville Church, both of Washington, D. C. (Paul C. Wagner, of Philadelphia, Pa., of counsel), for appellee. Before WOOLLEY, Circuit Judge, and J. WHITAKER THOMPSON and JOHNSON, District Judges. WOOLLEY, Circuit Judge. The plaintiff, assignor of two letters patent to Isaac H. Athey, charged the defendant with infringement of claims 8, 9, 10, 11, 12, 13, 21 and 22 of the first patent (No. 1,435,788) and claims 3, 8, 9, 10 and 11 of the second patent (No. 1,623,457) for inventions in traction vehicles and traction mechanism. The trial court having found the first patent not infringed and the second invalid dismissed the bill. 32 F.(2d) 781. This appeal followed. First Patent. The invention relates to a chain traction device differing from the familiar caterpillar type in that the power for its movement is not self-contained but comes from outside, thus converting it into a tender or trailer used mainly in low, heavy and swampy land, and resembling the caterpillar type in that the characteristics of its organization are a vehicle body mounted on an axle, a beam pivotally and rotatably mounted on each end of the axle, a pair of load-supporting wheels rotatably mounted on each end of each beam, .an endless track or tread chain on each side of the vehicle extending fore and aft, above, below and partly around each pair of wheels, made up of a plurality of tread links, trussed or self-stiffening, arcuate or outwardly convex at the bottom so-as to form a solid base tread or artificial road on which the vehicle can move, yet which will fold and permit the chain to travel around the wheels, the tread chain being long enough to permit slack or allow play in its movement around the pair of wheels. . The plaintiff, though claiming the combination to be new, admits that each element was in and of itself old in the art except the length of the chain or tread feature and the slack that accumulates in front of the leading wheels. It admits, as it must, that slack on all power-driven belting, endless chains and bands was old in many arts, otherwise they would bind, but maintains that the slack of the invention was new in principle — “useful slack, — slack in an environment which gave it (the slack) function and utility.” So, slack being one of the elements of the combination and the only one which has any claimed novelty, the controversy below, as here, turned on its inventive quality. On this question the inventor had trouble in the Patent Office when he applied for a patent for mechanism with a loose or slack track chain, describing this element as “an idling space between the wheels,” “the length of the chain being somewhat greater than the length required to pass around the wheels.” These claims were rejected as too indefinite in view of the art. The applicant then amended by filing claims for a chain “substantially greater in length than the loop distance,” a “tread chain * * * greater in length than half the circumference of each of the wheels plus twice the distance between their axes.” These were rejected for the same reason. Again the applicant amended by claims describing the slack to be “sufficient to permit each link to assume substantially its supporting position before the weight of the first wheel is imposed thereon.” These, too, were rejected. The Patent Office knowing that there were many kinds of slack in many arts — even in this art — insisted from the beginning that the applicant be specific with respect to the slack of the mechanism. The applicant tried 'again and again to state, by-qualifying words, the inventive slack without fixedly limiting or defining it until the Patent Office forced him to define the precise amount of slack constituting his invention. This finally he did by using different expressions in the allowed claims in suit, such as, the chain being of a length whieh permits “sufficient slack to develop to allow the leading link of said track section to occupy a position as a continuation of said arc prior to assumption of load,” the “said track chains being trussed to provide convex arcuate wheel-supporting track sections and of such length as to permit the leading links thereof to assume positions as a continuation of said ares before assumption of load,” “the said track chain being of such length as to permit the links thereof to assume their load supporting position before assumption of load,” These phrases mean the same thing whieh is that the leading link — the one ahead of the link on whieh the wheel is resting— should move to a load supporting position before the wheel (with the load) rolls upon it, or, stated differently, that before the load descends through the wheel upon a link, that link shall have reached a position whieh is an extension or “continuation” of the stiffened arcuate tread, or, stated in still another way, the leading link must have extended flat upon the ground or as nearly so as the stiffened are will allow and there await the wheel. That is the slack of the invention to which, on rejection and abandonment of everything else, the patent is limited. In practice the plaintiff found that a tread chain which conforms precisely to these defined claims is impracticable. It extends too far in front, prevents easy turning of the vehicle and presents other difficulties arising from too much slack. So in its commercial device the plaintiff employs a shorter chain and smaller slack where, through the wheels, the load descends (partially) on the leading tread link before it assumes its final flattened and .arcuate position as defined by the claims. And this, too, is precisely what the defendant does in its commercial device. So neither the plaintiff nor the defendant is using the slack of the invention. Yet the plaintiff says the defendant infringes, on the contention that the lesser slack falls within the range of equivalents of the invention of the greater slack. The slack of the defendant’s mechanism is the slack generally of the prior art and particularly the slack on whieh many claims of the patent application were rejected for want of invention. The very thing on which, .for want of invention, a patent was refused can scarcely be the equivalent of an invention for which a patent was granted. Mechanically admirable as is the plaintiff’s device and broadly useful as it has become in certain trades, we are constrained to hold that the defendant has not infringed the claims of this patent in suit. Second Patent. The invention of the second patent to Athey relates to the same type of traction vehicle whose load-supporting wheels roll on an endless track chain or tread. The salient characteristic of this invention is an endless line of trussing members on the'interior of the endless chain that bridge each track shoe from hinge to hinge and are connected or attached to ( each shoe solely by the hinge pintles. By these inwardly extending and, in one position, unyielding truss members there is produced a rigid, solid, arcual tread; yet, by the flexibility of the same truss members when in another position the tread in its movement is permitted to curve around the wheels. It is an alluring device. When first seen, the thought of invention springs to the mind. Without doubt, invention it is, but we hold with the learned trial judge that in principle and in crude detail it was first conceived by George H. Edwards in 1872, Letters Patent .No. 124,042, “for improvement in braced chains,” meaning, trussed chains. The Athey improved details are not inventions. If for any reason the Edwards patent does not constitute a complete an-' tieipation of the patent under discussion, then, clearly, the second patent to Athey is invalid in view of his own first patent. The decree of the District Court is affirmed. On Petition for Rehearing. The plaintiff-appellant, in its petition for rehearing, complains of four errors whieh it says we made in our opinion, indicating error in the decree of non-infringement. The first is our statement that, “In practice the plaintiff found that a tread chain which conforms precisely to these defined claims is impracticable. It extends too far in front, prevents easy turning of the vehicle and presents other difficulties arising from too much slack.” This, the appellant asserts, has no foundation in the record. That may be true; we shall assume it is true; though the point was made somewhere, probably in the argument. However that may be, the fact is the plaintiff in its commercial device departs for some reason from the slack of the claims which were allowed and uses the lessor slack of claims which were rejected. The plaintiff next complains that we unduly limited the claims of the patent. We were not conscious of placing any limitations upon them. We took the claims as they are written and applied them as they are limited by their own terms after long travail in the Patent Office. Nor were we conscious of reading into them a meaning different from that disclosed by tlieir words. The plaintiff asks us to construe the claims not by their express terms but by the patent and the original application and particularly by a broad expression in the specification “that the chain 39 is made somewhat greater in length than is necessary for it to pass around the bridge wheels.” In view of the history of the patent application and of the condition as to slack on which the claims were in part ultimately allowed, we wore compelled to find that the claims are subject to their own limitations and that the invention is no broader than that which they disclose. The next error into which, it is alleged, we fell was in speaking of the slack in the mechanism of the patent as the slack generally of the prior art, against the plaintiff’s contention that the slack here is novel in location, kind and utility. We think it is the same kind of slack, with a different location, because of the difference in position of the moving instrumentalities, the wheels, yet we cannot find patentable novelty or utility in using common art slack for slack purposes even in a new mechanism. The plaintiff next complains that we “failed to give to the slack defining expressions of the claims in suit * * * the range of equivalency to which the disclosure of the patent, the merit and novelty of Athey’s contribution to the art and the proceedings in the Patent Office on Athey’s application clearly entitle them.” It was because of the action of the Patent Office in rejecting broad claims as to the dimensions of the slack and allowing narrow claims definitely limiting them and because of Athey’s acquiescence in its action (which amounted to a disclaimer) that we felt unable to give the claims allowed an equivalency equal to the claims rejected. We were, under the law, forced to hold that Athey was estopped to assert for the allowed claims of his patent an equivalency or scope commensurate with that of his rejected claims. Weber Electric Company v. Freeman Electric Company, 256 U. S. 668, 41 S. Ct. 600, 65 L. Ed. 1162; I. T. S. Rubber Company v. Essex Rubber Company, 272 U. S. 429, 47 S. Ct. 136, 71 L. Ed. 335. And, finally, the plaintiff emphasizes the whole mechanism as a patentable combination and minimizes the element of slack. It is a combination; and for such a combination, within the claims, the patent may be valid; yet it is not an invention without the slack of the claims. So, however approached and however discussed, the question of infringement turns on the slack defined by the claims. The decree holding noninfringement remains affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_oththres	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. John YOUNG, Defendant-Appellant. No. 89-5016. United States Court of Appeals, Fourth Circuit. Argued June 7, 1990. Decided Oct. 12, 1990. John Kenneth Zwerling, Zwerling, Mark & Sutherlund, P.C., Alexandria, Va., argued (Thomas J. Curcio, Cohen, Dunn & Sinclair, P.C., Alexandria, Va., on brief), for defendant-appellant. Dennis Michael Kennedy, Asst. U.S. Atty., Alexandria, Va., argued (Henry E. Hudson, U.S. Atty., Jennifer A. Costas, Law Student, Alexandria, Va., on brief), for plaintiff-appellee. Before ERVIN, Chief Judge, and MURNAGHAN and CHAPMAN, Circuit Judges. CHAPMAN, Circuit Judge: Appellant John Young was confined at Lorton Reformatory, serving a sentence of 54 years to life imprisonment for armed robbery and first degree murder, when, as a result of an incident which occurred during a major disturbance on December 24, 1987, he was charged (1) with willfully assaulting corrections officer Rhyne with a dangerous weapon with intent to cause bodily harm in violation of 18 U.S.C. § 113(c), (2) with assaulting Rhyne while the corrections officer was in the performance of his official duties, in violation of District of Columbia Code § 22-505(a), and (3) with possession of a knife in violation of Lorton Reformatory Regulations, a violation of 18 U.S.C. § 13, assimilating Virginia Code § 53.1-203(4) (1950), as amended. At trial Young was convicted on each count and was sentenced to 65 months on Count I, 65 months on Count II to run concurrently with the sentence on Count I, and 40 months on Count III to run consecutively to the sentences under Counts I and II. All sentences were consecutive to the sentences he was then serving. On appeal Young argues (1) that the U.S. Sentencing Guidelines are not applicable to violations of the District of Columbia Code, (2) that the U.S. Sentencing Guidelines are not applicable to cases under the Assimila-tive Crimes Act, (3) that the sentences given on Counts I and II are outside the statutory maximum, (4) that the sentencing court erred in not grouping all counts for the purposes of the Sentencing Guidelines, (5) that the trial judge erred in holding that knowledge of the assault victim’s status as a corrections officer was sufficient to show that the attack was motivated by such status, and (6) that if the Sentencing Guidelines are applicable to assimilative crimes, the sentence must comport with the “like punishment” aspect of the Assimilative Crimes Act. We hold that the Guidelines are applicable to crimes committed at Lorton Reformatory and to crimes under the Assimilative Crimes Act. We affirm the convictions of Young. However, we remand for resen-tencing because the maximum sentence for each of Counts I and II is 60 months, and the sentences of 65 months on each count are legally excessive, and all counts should have been grouped for sentencing under U.S. Sentencing Guidelines § 3D1.2. I On the evening of December 24, 1987, Lorton inmate Ricky Green was being chased across the yard by a group of inmates which included appellant John Young. Green had a shank (homemade knife) in his hand as he approached corrections officer Rhyne. As Green passed, Rhyne tripped him and grabbed the shank, but Green caught Rhyne from behind and used him as a shield against his pursuers. Rhyne was in uniform at the time, and Young made a thrust at Rhyne with his shank, catching Rhyne’s jacket with the weapon, but inflicting no personal injuries to Rhyne. Young was apprehended and his shank was confiscated. At his sentencing, after he had been convicted on the three counts set forth above, appellant challenged the addition of two levels to his base offense level for bodily injury as to Count I, because the corrections officer was not injured. He challenged the addition of three levels to Count II for victim-related status because even though the victim was a corrections officer, there was no showing that the crime was motivated by such status. Appellant also contended that Counts I and II were related and should have been grouped for sentencing. The trial judge found that a two-level increase was not justified on Count I because corrections officer Rhyne was not injured, and that the corrections officer was in uniform at the time of the assault and a three-level increase should be made as to Count II because the crime was motivated by the victim’s status as a corrections officer. The claim that Counts I and II should be grouped for sentencing was withdrawn by appellant’s trial counsel, so these offenses were not grouped. The court found a base offense level of 25, criminal history category V, and a Guidelines range of 100-125 months. The court then imposed a sentence of 65 months concurrent as to Counts I and II, and 40 months consecutive as to Count III for a total of 105 months to be consecutive to the sentences Young was then serving. An appeal was filed by Young’s trial attorney, but he then submitted a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that an appeal would be frivolous, and requested leave to withdraw. Young then filed a pro se brief claiming ineffective assistance of counsel and asking that his attorney be granted leave to withdraw. We allowed the trial attorney to withdraw and appointed new counsel to handle the appeal. II We find no merit to appellant’s claim that the United States Sentencing Guidelines do not apply to crimes committed at Lorton Reformatory, which is located in the Eastern District of Virginia. Appellant argues that under the holding in United States v. Thompson, 347 A.2d 581 (D.C.1975), both the United States District Court for the Eastern District of Virginia and the Superior Court of the District of Columbia had jurisdiction to try Young for the offenses committed at Lorton Reformatory. He then claims that the prosecutors have preferred to bring cases in the United States district courts because defendants receive longer sentences under the U.S. Sentencing Guidelines which are applicable in the federal courts and not in the Superi- or Courts of the District of Columbia. Although the second count of the indictment is brought under District of Columbia Code § 22-505(a), which makes it a crime to assault “any officer or employee of any penal or correctional institution of the District of Columbia, or any officer or employee of the government of the District of Columbia charged with the supervision of juveniles being confined pursuant to law in any facility of the District of Columbia, whether such institution or facility is located within the District of Columbia or elsewhere,” this does not grant exclusive jurisdiction to the Superior Court, and we so held in United States v. Perez, 488 F.2d 1057 (4th Cir.1974). The Eastern District of Virginia has jurisdiction under the clear language of § 22-505 of the D.C.Code and under Article III of the Constitution which requires “[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed.” U.S. Const, art. Ill, § 2, cl. 3. The United States District Court for the Eastern District of Virginia has original jurisdiction for crimes committed at Lorton Reformatory, which is located within that district, and this includes criminal charges for violation of the D.C.Code and also for violation of Virginia criminal laws assimilated by 18 U.S.C. § 13. District of Columbia Code § 22-505(a) is the basis for the charges contained in Count II of the indictment, and Code of Virginia § 53.1-203(4) as assimilated by 18 U.S.C. § 13 is the basis for the charge in Count III. The application of these laws to crimes committed at Lorton Reformatory is proper and provides a set of laws more complete than would be the case if only federal statutes were applicable. Ill Appellant argues that the Sentencing Guidelines do not apply to the Assimilative Crimes Act because of the requirement that persons convicted under 18 U.S.C. § 13 be “subject to a like punishment” as prescribed by state law. He contends that in sentencing the appellant, the trial judge made no effort to conform the sentence under Count III to state sentencing practices, and it was error not to seek intrastate uniformity in sentencing. The Sentencing Reform Act and the Sentencing Guidelines adopted thereunder apply to assimilated crimes. See United States v. Garcia, 893 F.2d 250 (10th Cir.1989); United States v. Leake, 908 F.2d 550 (9th Cir.1990); and the Commentary to § 2X5.1, United States Sentencing Commission Guidelines Manual, effective November 1, 1989, which refers specifically to assimilated crimes. Both Leake and Garcia hold that the “like punishment” requirement of the Assimilative Crimes Act mandates that federal court sentences for assimilated crimes must fall within the minimum and maximum terms established by state law, and that within this range of discretion federal judges should apply the Sentencing Guidelines to the extent possible. We agree with and adopt this holding. We are aware of United States v. White, 741 F.Supp. 1200 (E.D.N.C.1990), which holds that the Sentencing Guidelines do not apply to charges under the Assimilative Crimes Act. White relies upon language contained in United States v. Robinson, 495 F.2d 30 (4th Cir.1974), and United States v. Price, 812 F.2d 174 (4th Cir.1987), which predate the enactment of the Sen-tenting Reform Act and its Guidelines. The reasoning in White is not persuasive and it is not the law of this Circuit. IV The sentences of 65 months on both Counts I and II exceed the statutory maximum provided and are set aside. Both 18 U.S.C. § 113(c) and § 22-505(a) of the D.C. Code, the statutes violated in Counts I and II, respectively, have maximum penalties of only five years (60 months) imprisonment. Sentences of 65 months on each of these counts are illegal: “It is well established that a sentence which does not comply with the letter of the criminal statute which authorizes it is so erroneous that it may be set aside on appeal.” Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 648, 91 L.Ed. 818 (1947). V Since there must be a remand for resen-tencing, we will examine the process used by the district court in its determination of the original sentences, and we will explain the proper approach on resentencing. The trial judge found that the corrections officer was not injured in the assault; therefore, an increase of two levels on Count I was not appropriate under Guidelines § 2A2.1(b)(3)(A). On Count II the trial judge found that the assault was motivated by Officer Rhyne’s status as a corrections officer and three levels were added pursuant to Guidelines § 3A1.2(a). These findings of fact are not clearly erroneous. The court found that the appellant had withdrawn his claim that Counts I and II should be grouped. As a result, the offenses were not grouped as they should have been under U.S.S.G. § 3D1.1. The decision of whether to group counts is reviewed de novo. United States v. Toler, 901 F.2d 399 (4th Cir.1990). The trial judge determined that the adjusted offense level was 23 using Count II as the highest level and adjusting for the status of the victim and the use of a weapon. The adjusted offense level was increased to 25 when Counts I and III were considered. The criminal history category was V and this combination produced a Guidelines range of 100-125 months in prison. The appellant received 65 months on Count I, 65 months on Count II, concurrent to Count I, and 40 months on Count III to be served consecutively to the sentences on Counts I and II. Young claims that it was error not to group all of the counts to establish the proper sentence. Although at sentencing appellant’s attorney withdrew the request to group Counts I and II, the United States acknowledges that it was error not to group Counts I and II, and the United States Attorney has not argued that the issue of grouping was not properly preserved for appeal. Young’s trial counsel obviously did not have confidence in the grouping issue, because he originally argued to group Counts I and II and then withdrew this request. Appointed counsel has raised the matter of grouping and the issue of grouping is now before us. This issue must be addressed, because a failure to group, when required, is a misapplication of the Guidelines and appealable under 18 U.S.C. § 3742(a)(2). The grouping of offenses is covered by part D, U.S. Sentencing Guidelines. It is provided in § 3Dl.l(a): Procedure for Determining Offense Level on Multiple Counts When a defendant has been convicted of more than one count, the court shall: (a) Group the counts resulting in conviction into distinct Groups of Closely-Related Counts (“Groups”) by applying the rules specified in § 3D1.2. Section 3D1.2 provides: Groups of Closely-Related Counts All counts involving substantially the same harm shall be grouped together in a single Group. A count for which the statute mandates imposition of a consecutive sentence is excluded from such Groups for purposes of §§ 3D1.2-3D1.5. Counts involve substantially the same harm within the meaning of this rule: (a) When Counts involve the same victim and the same act or transaction. * # >K >k # * (c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts. Under the clear language of § 3D1.2(a), all counts against Young must be grouped for sentencing. They involve the same act or episode—an assault with a weapon upon a corrections officer. Count I charges that appellant Young “did assault Twan Rhyne with a dangerous weapon, to wit, a shank with intent to do bodily harm to said Twan Rhyne.” Count II charges Young with assaulting corrections officer Rhyne while said officer “was engaged in the performance of his official duties.” Count III (possession of a weapon) is a part of the same episode, and all three charges arise out of the same act and must be grouped as required by §§ 3D1.1 and 3D1.2(a) and (c). All of the counts involve the same act or transaction, they represent essentially the same injury, they are a part of the same criminal episode, they involve the same victim, and the possession and use of a weapon is “a specific offense charactistic in, or adjustment to, the guideline applicable to another count.” The use of the weapon requires an upward adjustment of four levels to Count II as indicated below. To determine the offense level applicable to the grouped offenses, we turn to § 3D1.3 which provides: Offense Level Applicable to Each Group of Closely-Related Counts. Determine the offense level applicable to each of the Groups as follows: (a) In the case of counts grouped together pursuant to § 3D1.2(a)-(c), the offense level applicable to a Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of Chapter Three, for the .most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group. Application Note 1 states: “The ‘offense level’ for a count refers to the offense level from Chapter Two after all adjustments from Parts A, B, and C of Chapter Three.” Applying these rules, Count II, assault upon a corrections officer, has the highest offense level after the required adjustments are made: 15 Base level (§ 2A2.2) 4 Weapon used (§ 2A2.2(b)(2)(B)) 3 Official victim (§ 3A1.2) 22 Adjusted base level The adjusted base level for Count I is 19, and the adjusted base level for Count III is 16. Using the highest adjusted offense level of 22 and a criminal history V, the Guidelines range is 77-96 months, and not 100-125 used by the district court. The error was occasioned by the withdrawal of the motion to group at sentencing. The Guidelines range of 77-96 months is in excess of the 60-month maximum provided for each of the three offenses. To determine the proper sentence on multiple counts, we look to U.S.S.G. part G, specifically § 5G1.2(d): If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects sentences on all counts shall run concurrently, except to the extent otherwise required by law. The Commentary advises that “total punishment is determined by the adjusted combined offense level. To the extent possible, the total punishment is to be imposed on each count. Sentences on all counts run concurrently, except as required to achieve the total sentence, or as required by law.” The Guidelines range of 77-96 months would require a sentence of 60 months on Count I, 60 months on Count II to be served concurrently, and a consecutive sentence within a range of 17-36 months on Count III to reach the “total punishment” for these two counts. We hold that the U.S. Sentencing Guidelines are applicable to the appellant’s offenses. We affirm the district court’s finding that the assault was motivated by the status of the victim as a corrections officer. We set aside all sentences and we remand for resentencing. The sentences on Counts I and II exceed the statutory maximum, and all counts should have been grouped under the Sentencing Guidelines. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESEN-TENCING. Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. Elizabeth Margaret DALLISON and Max Dallison, Appellants, v. SEARS, ROEBUCK AND CO., a corporation, Appellee. No. 6979. United States Court of Appeals Tenth Circuit. Dec. 27, 1962. Robert W. Johnson, Aurora, Colo., for appellant. Thomas E. McCarthy, Denver, Colo. (Robert S. Mitchell, Denver, Colo., on the brief), for appellee. Before PICKETT, BREITENSTEIN and HILL, Circuit Judges. HILL, Circuit Judge. Appellants, Elizabeth Margaret and Max Dallison, brought this diversity action against appellee, Sears, Roebuck and Co., to recover damages for personal injuries suffered by Elizabeth as the result of the burning of a nightgown which she was wearing. The complaint alleged a breach of implied warranty in the sale of the nightgown under the provisions of the Colorado Uniform Sales Act. Appellee’s defense, insofar as material to this appeal, was that the injuries sustained by Elizabeth were solely and proximately caused by her own negligence. A jury trial resulted in a verdict for the appellee and judgment was rendered thereon in its favor. The appeal is from that judgment and the order denying appellants’ motion for a new trial. The only issue involved is whether the trial court erred in instructing the jury on negligence as a defense to the action. The nightgown in question was purchased by Elizabeth in the fall of 1959 at appellee’s retail store in Southgate Shopping Center in Colorado Springs, Colorado. She also purchased a second nightgown at the same time. According to her testimony, both of the nightgowns appeared to be made out of the same material and appeared to be identical except for the fact that one was pink and the other blue. The two nightgowns were used along with others that she already owned and were given essentially the same type of laundry treatment and use as she had always given to similar items of wearing apparel. Elizabeth was wearing the blue nightgown when she retired to bed at approximately 11:00 p. m. on January 12, 1960. She apparently went to sleep soon thereafter but was awakened at about 11:40 p. m. when her husband, Max, returned home from a bowling contest. She heard her husband out in the kitchen and requested him to prepare some scrambled eggs and toast, which he did, and brought them to her in the bedroom. Elizabeth remained in bed in a sitting up position while she ate the eggs and toast and, after consuming them, asked Max to give her a tuinol sleeping pill from the night stand on his side of the-bed. He complied with this request and then left the bedroom and went to the livingroom to look at the evening paper. Elizabeth took the sleeping pill and' right afterward started to light a cigarette. According to her testimony, a portion of the ignited head of the match which she intended to use to light the cigarette flew off and lit on her gown, near the waist line. She further testified that when the ignited portion of the matchhead came in contact with the gown, it ignited rapidly and burned in-such a fashion that she was unable to-extinguish the fire and that she screamed' for her husband who came to her assistance and put out the fire but only after a major portion of the gown had burned,, causing her severe and serious injuries,, consisting of third degree burns upon approximately 40% of her body. She also testified that only a fraction of a second of time was consumed between the time she struck the match and when she first observed the flames on the gown and that it could not “have been more-than around 5 seconds” from the time she struck the match until she heard her husband come into the room after she had screamed for him. Max testified that “probably five minutes or less”' elapsed between the time he gave Elizabeth the sleeping pill and when she-screamed for his assistance. It was established at the trial that. Elizabeth was in the habit of taking three-grain tuinol sleeping pills, as she did on the night in question, and had taken them on the average of 5 or 6-times a week for several years prior to-the fire. Appellee presented expert testimony that tuinol is one of the most, rapidly acting barbiturates available and that a three-grain tuinol sleeping pill is a heavy dosage and is referred to as a hypnotic but that its effects would be delayed by the presence of food in the stomach. In answer to a hypothetical question, the expert witness testified that in his opinion a woman of Elizabeth’s .age and physical makeup, after taking the sleeping pill and under the circumstances, would have been only partially conscious at the time the fire started, would have reduced sensitivity to feeling heat and pain and, generally, would have ■diminished reflexes. Appellee also presented expert testimony to the effect that the pink nightgown purchased by Elizabeth, and which was not burned, was 100 per cent cotton fabric of a type generally and commonly used for wearing .apparel. This expert witness testified that a sample of the pink gown was tested for burning characteristics and, as a result of such test, he concluded that it was of normal flammability and would not ignite and burst into flame upon momentary contact with a lighted match. On these facts, appellants sought to recover damages claiming that Elizabeth’s injuries were directly and proximately caused by a momentary contact between a matchhead and the blue nightgown she was wearing, which, in violation of an implied warranty of fitness for the purpose intended, was so highly combustible as to immediately burst into flame. On the other hand, appellee’s claim or theory of the case was that the nightgown was not unusual or dangerously combustible and her injuries were solely and proximately caused by her own negligence in smoking and handling matches in bed, late at night, and while in a semi-conscious state induced by the taking of a highly potent sleeping pill or barbiturate. The lower court, in its instructions, advised the jury of these opposing claims or theories of the case by the parties and gave the instructions which appellants objected to on the ground that negligence was not a defense to their action. Appellants also specify as error the court’s refusal to give their requested instruction to that effect. Thus, we are squarely presented with the question of whether negligence is a proper defense in an action for breach of warranty. It is clear that under Colorado law each party is entitled to have the jury properly instructed on his theory of the case, providing such theory is supported by competent evidence, and it is the duty of the trial judge to give instructions that disclose each party’s theory. It is also clear that, as a general rule, it is incumbent upon the plaintiff in an action for breach of warranty to prove that the injuries were proximately caused by the breach of such warranty. As previously stated, appellee’s theory of the case was and is that the injuries suffered by Elizabeth were not proximately caused by any breach of implied warranty of fitness as to the nightgown but, rather, were solely and proximately caused by her own negligence in smoking and handling matches in bed under the circumstances discussed above. Thus, proximate cause was one of the important issues raised by the pleadings and an examination of the record clearly discloses competent evidence to support appellee’s theory on the issue. We agree with appellee that, under Colorado law, it was entitled to have the jury properly instructed as to its theory on that issue and this the court did. In so instructing, the court was careful to confine the issue to negligence as distinguished from contributory negligence. Appellants agree that under the rule prevailing in Colorado each party is entitled to have the jury instructed on his theory of the case, but they contend that such rule does not apply here because appellee’s theory is nothing more than the assertion of negligence as a defense and negligence is not a proper defense in an action for breach of warranty. In making this contention, appellants argue that in ruling upon the question the courts have used the terms “negligence” and “contributory negligence” interchangeably and have actually made no distinction between the two terms. Assuming that this is the case, it is of little help to them. As stated by one author, “The rulings of the courts on this question of contributory negligence are less than entirely harmonious”, and such statement is, indeed, borne out by the cases. The weight of authority, and it is not a great weight, appears to be that contributory negligence on the part of the buyer of a product sold under a warranty of fitness is not a defense in an action against the manufacturer or seller of the product for breach of that warranty. This is said to be “arguably the better view.” But, there is respectable authority in support of the view that contributory negligence is a proper defense. In at least one jurisdiction, there are cases going both ways on the •subject. Neither of the parties, however, cite us to any Colorado case ruling upon the question and our own independent research reveals none. In the absence of a decision by the Colorado Supreme Court on the question, we are governed by the well established rule of this Court that we will accept the considered determination of the trial court as to the local law, unless clearly convinced to the contrary. This rule was well stated by Judge Pickett in the case of Mitton v. Granite State Fire Ins. Co., 10 Cir., 196 F.2d 988, at page 992: “ * * * The Colorado courts have not passed upon the right to interest in cases similar to the one before us and we are unwilling to ■overrule the considered appraisal of the trial judge. His view of the Colorado law is entitled to great weight and should not be overruled unless it is clearly erroneous. (Citation of authorities)” The Supreme Court also applies this principle in cases where the state courts have not decided the state question presented In this case, we have the considered determination of the Trial Judge, who it may be noted is also a former state district judge, that negligence is a defense to an action for breach of warranty in Colorado. We are unwilling to say that his determination on that issue is clearly erroneous. For these reasons, we must conclude that the instructions given by the trial court when viewed in their entirety were not prejudicial to the appellants. The judgment is affirmed. . Colo.Rev.Stat.1953, 121-1-15, provides in part as follows: “Implied warranties of quality. — Subject to the provisions of this article and of any statute in that behalf, there is no implied warranty or condition as to the quality of fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: “(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or- • judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purposes. * * * . “Now, as defense to this action, the defendant, Sears, Roebuck, denies there was a breach of implied warranty and claims the gown was fit for the purpose for which it was sold, and the defendant also contends in its pleadings that the injuries and damages suffered by the plaintiff, Elizabeth Mar-garet Dallison, were solely and proximately caused by her own negligent conduct and failure to exercise due care for her own safety.” “On the other hand, if you find that the nightgown was not of such an inflammable nature of [or] that it was reasonably fit for the purpose for which it was intended to be used, or if you find from the evidence that the plaintiff was negligent, that is, the plaintiff, Elizabeth Margaret Dallison, was negligent in the use to which the nightgown was put, your verdict must be for the defendant.” “If you should find, however, that the proximate cause of the Plaintiff’s injuries was not the breach of the implied warranty, but was, rather, the negligence of the plaintiff, Elizabeth Margaret Dallison, then your verdict must be for the defendant.” “The defendant, as I have stated, not only denies a breach of an implied warranty, but claims that the injuries sustained by the plaintiff, Mrs. Dallison, were caused by her own negligence, which the defendant says was the proximate cause of her injuries.” “Negligence, ladies and gentlemen of the jury, is the failure or the omission to do something which under the circumstances a reasonably prudent person would do. It is the absence of ordinary care which is required to be exercised according to the circumstances.” . “You are hereby instructed that whether or not the Plaintiff Elizabeth Margaret Dallison was negligent or contributorily negligent in the use of the gown purchased from Sears, Roebuck and Company is of no consequence and does not constitute a defense to the Plaintiff’s action for breach of Implied Warranty.” . Behr v. McCoy, 138 Colo. 137, 330 P.2d 535; Haller v. Gross, 135 Colo. 218, 309 P.2d 598; Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862; Neilson v. Bowles, 124 Colo. 274, 236 P.2d 286. . Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309; Jacquot v. Wm. Filene’s Sons Co., 337 Mass. 312, 149 N.E.2d 635; 1 Hursh, American Law of Products Liability, § 1:21, p.p. 61-64. . 1 Hursh, American Law of Products Liability, § 3:9, at page 416. . Hansen v. Firestone Tire and Rubber Company, 6 Cir., 276 F.2d 254; Brown v. Chapman, 9 Cir., 304 F.2d 149, affirming Chapman v. Brown, 198 F.Supp. 78 (Hawaii, 1961); Young v. Aeroil Products Company, 9 Cir., 248 F.2d 185; Frank R. Jelleff, Inc. v. Braden, 98 U.S.App.D.C. 180, 233 F.2d 671; Rasmus v. A. O. Smith Corporation, 158 F.Supp. 70 (N.D.Iowa, 1958); Friend v. Childs Dining Hall Co., 231 Mass. 65, 120 N.E. 407, 5 A.L.R. 1100; Bahlman v. Hudson Motor Car Co., 290 Mich. 683, 288 N.W. 309; Jarnot v. Ford Motor Company, 191 Pa.Super. 422, 156 A.2d 568. . 1 Frumer and Friedman, Products Liability, § 16.01 [3], at page 307. . Arnaud’s Restaurant v. Cotter, 5 Cir., 212 F.2d 883, cert. denied, 348 U.S. 915, 75 S.Ct. 295, 99 L.Ed. 717 (by implication) ; Crotty v. Shartenberg’s New Haven, Inc., 147 Conn. 460, 162 A.2d 513; Sapiente v. Waltuch, 127 Conn. 224, 15 A.2d 417 (by implication); Sloan v. F. W. Woolworth Co., 193 Ill.App. 620; Nelson v. Anderson, 245 Minn. 445, 72 N.W.2d 861; Missouri Bag Co. v. Chemical Delinting Co., 214 Miss. 13, 58 So.2d 71, 33 A.L.R.2d 501; Heath v. Channel Lumber Co., 25 N.J.Super. 6, 95 A.2d 425; Eisenbach v. Gimbel Bros., 281 N.Y. 474, 24 N.E.2d 131; Razey v. J. B. Colt Co., 106 App.Div. 103, 94 N.Y.S. 59; Di Vello v. Gardner Machine Co., Ohio Com.Pl., 102 N.E.2d 289. . Compare Simmons v. Wichita Coca-Cola Bottling Company, 181 Kan. 35, 309 P.2d 633, and Challis v. Hartloff, 136 , Kan. 823, 18 P.2d 199, with Frier v. Proctor & Gamble Distributing Co., 173 Kan. 733, 252 P.2d 850, and Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P. 2d 413, 415. However, see 5 Kan.L.Rev. 128, 130, for a possible reconciling of these cases. . Woodmont, Inc. v. Daniels, 10 Cir., 290 F.2d 186, 188, Hamblin v. Mountain States Telephone & Telegraph Co., 10 Cir., 271 F.2d 562; Cranford v. Farnsworth & Chambers Company, 10 Cir., 261 F.2d 8. . Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480; MacGregor v. State Mutual Life Assurance Co., 315 U.S. 280, 62 S.Ct. 607, 86 L.Ed. 846. 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_decisiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. TOWN OF GREECE, NEW YORK, Petitioner v. Susan GALLOWAY et al. No. 12-696. Supreme Court of the United States Argued Nov. 6, 2013. Decided May 5, 2014. Syllabus* Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God." The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town's congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. Held: The judgment is reversed. 681 F.3d 20, reversed. Justice KENNEDY delivered the opinion of the Court, except as to Part II-B, concluding that the town's prayer practice does not violate the Establishment Clause. Pp. 1818 - 1825. (a) Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019. In Marsh, the Court concluded that it was not necessary to define the Establishment Clause's precise boundary in order to uphold Nebraska's practice of employing a legislative chaplain because history supported the conclusion that the specific practice was permitted. The First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then. See id., at 787-789, and n. 10, 103 S.Ct. 3330. A majority of the States have also had a consistent practice of legislative prayer. Id., at 788-790, and n. 11, 103 S.Ct. 3330. There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 670, 109 S.Ct. 3086, 106 L.Ed.2d 472 (opinion of KENNEDY, J.). Thus, any test must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Pp. 1818 - 1820. (b) Respondents' insistence on nonsectarian prayer is not consistent with this tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation's history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U.S., at 786, 103 S.Ct. 3330. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the "content of the prayer is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U.S., at 794-795, 103 S.Ct. 3330. To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents' contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer's place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage. From the Nation's earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in Greece do not fall outside this tradition. They may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a "spirit of cooperation." Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U.S., at 794-795, 103 S.Ct. 3330. Finally, so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. Pp. 1819 - 1825. Justice KENNEDY, joined by THE CHIEF JUSTICE and Justice ALITO, concluded in Part II-B that a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed shows that the town is not coercing its citizens to engage in a religious observance. The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation's heritage and tradition. It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens. Furthermore, the principal audience for these invocations is not the public, but the lawmakers themselves. And those lawmakers did not direct the public to participate, single out dissidents for opprobrium, or indicate that their decisions might be influenced by a person's acquiescence in the prayer opportunity. Respondents claim that the prayers gave them offense and made them feel excluded and disrespected, but offense does not equate to coercion. In contrast to Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, where the Court found coercive a religious invocation at a high school graduation, id., at 592-594, 112 S.Ct. 2649, the record here does not suggest that citizens are dissuaded from leaving the meeting room during the prayer, arriving late, or making a later protest. That the prayer in Greece is delivered during the opening ceremonial portion of the town's meeting, not the policymaking portion, also suggests that its purpose and effect are to acknowledge religious leaders and their institutions, not to exclude or coerce nonbelievers. Pp. 1824 - 1828. Justice THOMAS, joined by Justice SCALIA as to Part II, agreed that the town's prayer practice does not violate the Establishment Clause, but concluded that, even if the Establishment Clause were properly incorporated against the States through the Fourteenth Amendment, the Clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion. The municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding, which exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. Pp. 1815 - 1819. KENNEDY, J., delivered the opinion of the Court, except as to Part II-B. ROBERTS, C.J., and ALITO, J., joined the opinion in full, and SCALIA and THOMAS, JJ., joined except as to Part II-B. ALITO, J., filed a concurring opinion, in which SCALIA, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined as to Part II. BREYER, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. Thomas G. Hungar, Washington, DC, for Petitioner. Ian H. Gershengorn, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner. Douglas Laycock, Charlottesville, VA, for Respondents. Douglas Laycock, University of Virginia School of Law, Charlottesville, VA, Charles A. Rothfeld, Richard B. Katskee, Mayer Brown LLP, Washington, DC, Ayesha N. Khan, Counsel of Record, Gregory M. Lipper, Caitlin E. O'Connell, Americans United for Separation of Church and State, Washington, DC, for Respondents. Justice KENNEDY delivered the opinion of the Court, except as to Part II-B.* The Court must decide whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court's opinion in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), that no violation of the Constitution has been shown. I Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board's "chaplain for the month" and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. App. 22a-25a. The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month's meeting. The town eventually compiled a list of willing "board chaplains" who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too. Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. Id., at 22a. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community: "Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility.... Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen." Id., at 45a. Some of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine, as in the following prayer: "Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter.... We pray for peace in the world, an end to terrorism, violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan.... Praise and glory be yours, O Lord, now and forever more. Amen." Id., at 88a-89a. Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, Galloway admonished board members that she found the prayers "offensive," "intolerable," and an affront to a "diverse community." Complaint in No. 08-cv-6088 (WDNY), ¶ 66. After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha'i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation. Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They alleged that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given "in Jesus' name." 732 F.Supp.2d 195, 203 (2010). They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God" and would not associate the government with any one faith or belief. Id., at 210, 241. The District Court on summary judgment upheld the prayer practice as consistent with the First Amendment. It found no impermissible preference for Christianity, noting that the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town's congregations, rather than an official policy or practice of discriminating against minority faiths. The District Court found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity. The District Court also rejected the theory that legislative prayer must be nonsectarian. The court began its inquiry with the opinion in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, which permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not "exploited to proselytize or advance any one, or to disparage any other, faith or belief," id., at 794-795, 103 S.Ct. 3330. With respect to the prayer in Greece, the District Court concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It located in Marsh no additional requirement that the prayers be purged of sectarian content. In this regard the court quoted recent invocations offered in the U.S. House of Representatives "in the name of our Lord Jesus Christ," e.g., 156 Cong Rec. H5205 (June 30, 2010), and situated prayer in this context as part a long tradition. Finally, the trial court noted this Court's statement in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 603, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), that the prayers in Marsh did not offend the Establishment Clause "because the particular chaplain had 'removed all references to Christ.' " But the District Court did not read that statement to mandate that legislative prayer be nonsectarian, at least in circumstances where the town permitted clergy from a variety of faiths to give invocations. By welcoming many viewpoints, the District Court concluded, the town would be unlikely to give the impression that it was affiliating itself with any one religion. The Court of Appeals for the Second Circuit reversed. 681 F.3d 20, 34 (2012). It held that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The town's failure to promote the prayer opportunity to the public, or to invite ministers from congregations outside the town limits, all but "ensured a Christian viewpoint." Id., at 30-31. Although the court found no inherent problem in the sectarian content of the prayers, it concluded that the "steady drumbeat" of Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town with Christianity. Id., at 32. Finally, the court found it relevant that guest clergy sometimes spoke on behalf of all present at the meeting, as by saying "let us pray," or by asking audience members to stand and bow their heads: "The invitation ... to participate in the prayer ... placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation." Ibid. That board members bowed their heads or made the sign of the cross further conveyed the message that the town endorsed Christianity. The Court of Appeals emphasized that it was the "interaction of the facts present in this case," rather than any single element, that rendered the prayer unconstitutional. Id., at 33. Having granted certiorari to decide whether the town's prayer practice violates the Establishment Clause, 569 U.S. ----, 133 S.Ct. 2388, 185 L.Ed.2d 1103 (2013), the Court now reverses the judgment of the Court of Appeals. II In Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. See Lynch v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); cf. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 83 (1990). The Court has considered this symbolic expression to be a "tolerable acknowledgement of beliefs widely held," Marsh, 463 U.S., at 792, 103 S.Ct. 3330, rather than a first, treacherous step towards establishment of a state church. Marsh is sometimes described as "carving out an exception" to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to "any of the formal 'tests' that have traditionally structured" this inquiry. Id., at 796, 813, 103 S.Ct. 3330 (Brennan, J., dissenting). The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. See id., at 787-789, and n. 10, 103 S.Ct. 3330; N. Feldman, Divided by God 109 (2005). But see Marsh, supra, at 791-792, and n. 12, 103 S.Ct. 3330 (noting dissenting views among the Framers); Madison, "Detached Memoranda", 3 Wm. & Mary Quarterly 534, 558-559 (1946) (hereinafter Madison's Detached Memoranda). When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. 463 U.S., at 788-790, and n. 11, 103 S.Ct. 3330. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent. See Reports of Proceedings of the City Council of Boston for the Year Commencing Jan. 1, 1909, and Ending Feb. 5, 1910, pp. 1-2 (1910) (Rev. Arthur Little) ("And now we desire to invoke Thy presence, Thy blessing, and Thy guidance upon those who are gathered here this morning ..."). "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society." Marsh, supra, at 792, 103 S.Ct. 3330. Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny, 492 U.S., at 670, 109 S.Ct. 3086 (KENNEDY, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789-1801, pp. 12-13 (1997). In the 1850's, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S.Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, id., at 3; and the cost of the chaplain's salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670, 109 S.Ct. 3086 (opinion of KENNEDY, J.); see also School Dist. of Abington Township v. Schempp, 374 U.S. 203, 294, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring) ("[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers"). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U.S. 677, 702-704, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment). The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Respondents assert that the town's prayer exercise falls outside that tradition and transgresses the Establishment Clause for two independent but mutually reinforcing reasons. First, they argue that Marsh did not approve prayers containing sectarian language or themes, such as the prayers offered in Greece that referred to the "death, resurrection, and ascension of the Savior Jesus Christ," App. 129a, and the "saving sacrifice of Jesus Christ on the cross," id., at 88a. Second, they argue that the setting and conduct of the town board meetings create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board. The sectarian content of the prayers compounds the subtle coercive pressures, they argue, because the nonbeliever who might tolerate ecumenical prayer is forced to do the same for prayer that might be inimical to his or her beliefs. A Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that "use overtly Christian terms" or "invoke specifics of Christian theology." Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the " 'most general, nonsectarian reference to God,' " id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11-12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32-33. They argue that prayer which contemplates "the workings of the Holy Spirit, the events of Pentecost, and the belief that God 'has raised up the Lord Jesus' and 'will raise us, in our turn, and put us by His side' " would be impermissible, as would any prayer that reflects dogma particular to a single faith tradition. Id., at 34 (quoting App. 89a and citing id., at 56a, 123a, 134a). An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U.S., at 786, 103 S.Ct. 3330. The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate's first chaplains, the Rev. William White, gave prayers in a series that included the Lord's Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom's Prayer, and a prayer seeking "the grace of our Lord Jesus Christ, &c." Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the "Throne of Grace"); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord's Prayer). The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds. See, e.g., 160 Cong. Rec. S1329 (Mar. 6, 2014) (Dalai Lama) ("I am a Buddhist monk-a simple Buddhist monk-so we pray to Buddha and all other Gods"); 159 Cong. Rec. H7006 (Nov. 13, 2013) (Rabbi Joshua Gruenberg) ("Our God and God of our ancestors, Everlasting Spirit of the Universe ..."); 159 Cong. Rec. H3024 (June 4, 2013) (Satguru Bodhinatha Veylanswami) ("Hindu scripture declares, without equivocation, that the highest of high ideals is to never knowingly harm anyone"); 158 Cong. Rec. H5633 (Aug. 2, 2012) (Imam Nayyar Imam) ("The final prophet of God, Muhammad, peace be upon him, stated: 'The leaders of a people are a representation of their deeds' "). The contention that legislative prayer must be generic or nonsectarian derives from dictum in County of Allegheny, 492 U.S. 573, 109 S.Ct. 3086, that was disputed when written and has been repudiated by later cases. There the Court held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establishment Clause because it had "the effect of endorsing a patently Christian message." Id., at 601, 109 S.Ct. 3086. Four dissenting Justices disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the "forthrightly religious" Thanksgiving proclamations issued by nearly every President since Washington. Id., at 670-671, 109 S.Ct. 3086. The Court sought to counter this criticism by recasting Marsh to permit only prayer that contained no overtly Christian references: "However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.... The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had 'removed all references to Christ.' " Id., at 603 [109 S.Ct. 3086] (quoting Marsh, supra, at 793, n. 14 [103 S.Ct. 3330]; footnote omitted). This proposition is irreconcilable with the facts of Marsh and with its holding and reasoning. Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. The opinion noted that Nebraska's chaplain, the Rev. Robert E. Palmer, modulated the "explicitly Christian" nature of his prayer and "removed all references to Christ" after a Jewish lawmaker complained. 463 U.S., at 793, n. 14, 103 S.Ct. 3330 .With this footnote, the Court did no more than observe the practical demands placed on a minister who holds a permanent, appointed position in a legislature and chooses to write his or her prayers to appeal to more members, or at least to give less offense to those who object. See Mallory, "An Officer of the House Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Brandon Thomas BETTERMAN, Petitioner v. MONTANA. No. 14-1457. Supreme Court of the United States Argued March 28, 2016. Decided May 19, 2016. Fred A. Rowley, Jr., Los Angeles, CA, for petitioner. Dale Schowengerdt, Solicitor General, for respondent. Ginger D. Anders for the United States as amicus curiae, by special leave of the Court, supporting the respondent. Stuart Banner, Los Angeles, CA, Chad Wright, Koan Mercer, Office of the Appellate Defender, Helena, MT, Fred A. Rowley, Jr., Daniel B. Levin, Thane M. Rehn, Cathleen H. Hartge, Eric C. Tung, Munger, Tolles & Olson LLP, Los Angeles, CA, for petitioner. Timothy C. Fox, Montana Attorney General, Dale Schowengerdt, Solicitor General, C. Mark Fowler, Appellate Bureau Chief, Tammy A. Hinderman, Jonathan M. Krauss, Assistant Attorneys General, Montana Department of Justice, Helena, MT, for respondent. Justice GINSBURG delivered the opinion of the Court. The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." Does the Sixth Amendment's speedy trial guarantee apply to the sentencing phase of a criminal prosecution? That is the sole question this case presents. We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim. He did not preserve a due process challenge. See Tr. of Oral Arg. 19. We, therefore, confine this opinion to his Sixth Amendment challenge. I Ordered to appear in court on domestic assault charges, Brandon Betterman failed to show up and was therefore charged with bail jumping. 378 Mont. 182, 184, 342 P.3d 971, 973 (2015). After pleading guilty to the bail-jumping charge, he was jailed for over 14 months awaiting sentence on that conviction. Id., at 184-185, 342 P.3d, at 973-974. The holdup, in large part, was due to institutional delay: the presentence report took nearly five months to complete; the trial court took several months to deny two presentence motions (one seeking dismissal of the charge on the ground of delay); and the court was slow in setting a sentencing hearing. Id., at 185, 195, 342 P.3d, at 973-974, 980. Betterman was eventually sentenced to seven years' imprisonment, with four of those years suspended. Id., at 185, 342 P.3d, at 974. Arguing that the 14-month gap between conviction and sentencing violated his speedy trial right, Betterman appealed. The Montana Supreme Court affirmed his conviction and sentence, ruling that the Sixth Amendment's Speedy Trial Clause does not apply to postconviction, presentencing delay. Id., at 188-192, 342 P.3d, at 975-978. We granted certiorari, 577 U.S. ----, 136 S.Ct. 582, 193 L.Ed.2d 464 (2015), to resolve a split among courts over whether the Speedy Trial Clause applies to such delay. Holding that the Clause does not apply to delayed sentencing, we affirm the Montana Supreme Court's judgment. II Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase. In the first stage-before arrest or indictment, when the suspect remains at liberty-statutes of limitations provide the primary protection against delay, with the Due Process Clause as a safeguard against fundamentally unfair prosecutorial conduct. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) ; see id., at 795, n. 17, 97 S.Ct. 2044 (Due Process Clause may be violated, for instance, by prosecutorial delay that is "tactical" or "reckless" (internal quotation marks omitted)). The Sixth Amendment's Speedy Trial Clause homes in on the second period: from arrest or indictment through conviction. The constitutional right, our precedent holds, does not attach until this phase begins, that is, when a defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 320-321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Today we hold that the right detaches upon conviction, when this second stage ends. Prior to conviction, the accused is shielded by the presumption of innocence, the "bedrock[,] axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." Reed v. Ross, 468 U.S. 1, 4, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (internal quotation marks omitted). The Speedy Trial Clause implements that presumption by "prevent[ing] undue and oppressive incarceration prior to trial, ... minimiz[ing] anxiety and concern accompanying public accusation [,] and ... limit[ing] the possibilities that long delay will impair the ability of an accused to defend himself." Marion, 404 U.S., at 320, 92 S.Ct. 455 (internal quotation marks omitted). See also Barker v. Wingo, 407 U.S. 514, 532-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). As a measure protecting the presumptively innocent, the speedy trial right-like other similarly aimed measures-loses force upon conviction. Compare In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (requiring "proof beyond a reasonable doubt of every fact necessary to constitute the crime"), with United States v. O'Brien, 560 U.S. 218, 224, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) ("Sentencing factors ... can be proved ... by a preponderance of the evidence."). Compare also 18 U.S.C. § 3142(b) (bail presumptively available for accused awaiting trial) with § 3143(a) (bail presumptively unavailable for those convicted awaiting sentence). Our reading comports with the historical understanding. The speedy trial right, we have observed, "has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215)...." Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Regarding the Framers' comprehension of the right as it existed at the founding, we have cited Sir Edward Coke's Institutes of the Laws of England. See id., at 223-225, and nn. 8, 12-14, 18, 87 S.Ct. 988. Coke wrote that "the innocent shall not be worn and wasted by long imprisonment, but ... speedily come to his tria[l] ." 1 E. Coke, Second Part of the Institutes of the Laws of England 315 (1797) (emphasis added). Reflecting the concern that a presumptively innocent person should not languish under an unresolved charge, the Speedy Trial Clause guarantees "the accused " "the right to a speedy ... trial ." U.S. Const., Amdt. 6 (emphasis added). At the founding, "accused" described a status preceding "convicted." See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 322 (1769) (commenting on process in which "persons accused of felony ... were tried ... and convicted " (emphasis added)). And "trial" meant a discrete episode after which judgment (i.e., sentencing) would follow. See, e.g., id., at 368 ("We are now to consider the next stage of criminal prosecution, after trial and conviction are past ...: which is that of judgment ."). This understanding of the Sixth Amendment language-"accused" as distinct from "convicted," and "trial" as separate from "sentencing"-endures today. See, e.g., Black's Law Dictionary 26 (10th ed. 2014) (defining "accused" as "a person who has been arrested and brought before a magistrate or who has been formally charged " (emphasis added)); Fed. Rule Crim. Proc. 32 (governing "Sentencing and Judgment," the rule appears in the chapter on "Post-Conviction Procedures," which follows immediately after the separate chapter headed "Trial"). This Court's precedent aligns with the text and history of the Speedy Trial Clause. Detaining the accused pretrial, we have said, disadvantages him, and the imposition is "especially unfortunate" as to those "ultimately found to be innocent." Barker, 407 U.S., at 532-533, 92 S.Ct. 2182. And in Marion, 404 U.S., at 320, 92 S.Ct. 455 addressing "the major evils protected against by the speedy trial guarantee," we observed: "Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." We acknowledged in Marion that even pre-arrest-a stage at which the right to a speedy trial does not arise-the passage of time "may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself." Id., at 321, 92 S.Ct. 455. Nevertheless, we determined, "this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper [arrest or charge triggered] context." Id., at 321-322, 92 S.Ct. 455. Adverse consequences of postconviction delay, though subject to other checks, see infra, at 1617 - 1618, are similarly outside the purview of the Speedy Trial Clause. The sole remedy for a violation of the speedy trial right-dismissal of the charges, see Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973) ; Barker, 407 U.S., at 522, 92 S.Ct. 2182 -fits the preconviction focus of the Clause. It would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions. Betterman concedes that a dismissal remedy ordinarily would not be in order once a defendant has been convicted. See Tr. of Oral Arg. 5-6; cf. Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947) ("[A]n error in passing the sentence" does not permit a convicted defendant "to escape punishment altogether."). The manner in which legislatures have implemented the speedy trial guarantee matches our reading of the Clause. Congress passed the Speedy Trial Act of 1974, 18 U.S.C. § 3161 et seq.,"to give effect to the sixth amendment right." United States v. MacDonald, 456 U.S. 1, 7, n. 7, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) (quoting S.Rep. No. 93-1021, p. 1 (1974)). "The more stringent provisions of the Speedy Trial Act have mooted much litigation about the requirements of the Speedy Trial Clause...." United States v. Loud Hawk, 474 U.S. 302, 304, n. 1, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (citation omitted). With certain exceptions, the Act directs-on pain of dismissal of the charges, § 3162(a)-that no more than 30 days pass between arrest and indictment, § 3161(b), and that no more than 70 days pass between indictment and trial, § 3161(c)(1). The Act says nothing, however, about the period between conviction and sentencing, suggesting that Congress did not regard that period as falling within the Sixth Amendment's compass. Numerous state analogs similarly impose precise time limits for charging and trial; they, too, say nothing about sentencing. Betterman asks us to take account of the prevalence of guilty pleas and the resulting scarcity of trials in today's justice system. See Lafler v. Cooper, 566 U.S. ----, ----, 132 S.Ct. 1376, 1381, 182 L.Ed.2d 398 (2012) ( "[C]riminal justice today is for the most part a system of pleas, not a system of trials."). The sentencing hearing has largely replaced the trial as the forum for dispute resolution, Betterman urges. Therefore, he maintains, the concerns supporting the right to a speedy trial now recommend a speedy sentencing hearing. The modern reality, however, does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause. And factual disputes, if any there be, at sentencing, do not go to the question of guilt; they are geared, instead, to ascertaining the proper sentence within boundaries set by statutory minimums and maximums. Moreover, a central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U.S.C. § 3552 ; Fed. Rule Crim. Proc. 32(c) -(g) ; 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 26.5(b), pp. 1048-1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay. Indeed, many-if not most-disputes are resolved, not at the hearing itself, but rather through the presentence-report process. See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) ("Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than ... about the sentencing procedures of judges or juries."); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) ("[T]oday's sentencing hearings ... rubber-stamp plea-bargained sentences."). As we have explained, at the third phase of the criminal-justice process, i.e., between conviction and sentencing, the Constitution's presumption-of-innocence-protective speedy trial right is not engaged. That does not mean, however, that defendants lack any protection against undue delay at this stage. The primary safeguard comes from statutes and rules. The federal rule on point directs the court to "impose sentence without unnecessary delay." Fed. Rule Crim. Proc. 32(b)(1). Many States have provisions to the same effect, and some States prescribe numerical time limits. Further, as at the prearrest stage, due process serves as a backstop against exorbitant delay. See supra, at 1613. After conviction, a defendant's due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair. But because Betterman advanced no due process claim here, see supra, at 1612, we express no opinion on how he might fare under that more pliable standard. See, e.g., United States v. $8,850, 461 U.S. 555, 562-565, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983). The course of a criminal prosecution is composed of discrete segments. During the segment between accusation and conviction, the Sixth Amendment's Speedy Trial Clause protects the presumptively innocent from long enduring unresolved criminal charges. The Sixth Amendment speedy trial right, however, does not extend beyond conviction, which terminates the presumption of innocence. The judgment of the Supreme Court of Montana is therefore Affirmed. Justice THOMAS, with whom Justice ALITO joins, concurring. I agree with the Court that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing proceedings, except perhaps to bifurcated sentencing proceedings where sentencing enhancements operate as functional elements of a greater offense. See ante, at 1612 - 1613, and n. 2. I also agree with the Court's decision to reserve judgment on whether sentencing delays might violate the Due Process Clause. Ante, at 1617 - 1618. Brandon Betterman's counsel repeatedly disclaimed that he was raising in this Court a challenge under the Due Process Clause. See Tr. of Oral Arg. 7-8 ("We haven't included that. We didn't include that in the question presented, Your Honor"); id., at 8 ("[W]e are not advancing that claim here"); id., at 19 ("[W]e didn't preserve a-a due process challenge. Our challenge is solely under the Sixth Amendment"). We have never decided whether the Due Process Clause creates an entitlement to a reasonably prompt sentencing hearing. Today's opinion leaves us free to decide the proper analytical framework to analyze such claims if and when the issue is properly before us. Justice SOTOMAYOR suggests that, for such claims, we should adopt the factors announced in Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Post, at 1619 (concurring opinion). I would not prejudge that matter. The factors listed in Barker may not necessarily translate to the delayed sentencing context. The Due Process Clause can be satisfied where a State has adequate procedures to redress an improper deprivation of liberty or property. See Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In unusual cases where trial courts fail to sentence a defendant within a reasonable time, a State might fully satisfy due process by making traditional extraordinary legal remedies, such as mandamus, available. Or, much like the federal Speedy Trial Act regulates trials, see 18 U.S.C. § 3161, a State might remedy improper sentencing delay by statute. And a person who sleeps on these remedies, as Betterman did, may simply have no right to complain that his sentencing was delayed. We should await a proper presentation, full briefing, and argument before taking a position on this issue. The Court thus correctly "express[es] no opinion on how [Betterman] might fare" under the Due Process Clause. Ante, at 1618. Compare Burkett v. Cunningham, 826 F.2d 1208, 1220 (C.A.3 1987) ; Juarez-Casares v. United States, 496 F.2d 190, 192 (C.A.5 1974) ; Ex parte Apicella, 809 So.2d 865, 869 (Ala.2001) ; Gonzales v. State, 582 P.2d 630, 632 (Alaska 1978) ; Jolly v. State, 358 Ark. 180, 191, 189 S.W.3d 40, 45 (2004) ; Trotter v. State, 554 So.2d 313, 316 (Miss.1989), superseded by statute on other grounds, Miss.Code Ann. § 99-35-101 (2008) ; Commonwealth v. Glass, 526 Pa. 329, 334, 586 A.2d 369, 371 (1991) ; State v. Leyva, 906 P.2d 910, 912 (Utah App.1995) ; and State v. Dean, 148 Vt. 510, 513, 536 A.2d 909, 912 (1987) (Speedy Trial Clause applies to sentencing delay), with United States v. Ray, 578 F.3d 184, 198-199 (C.A.2 2009) ; State v. Drake, 259 N.W.2d 862, 866 (Iowa 1977), abrogated on other grounds by State v. Kaster, 469 N.W.2d 671, 673 (Iowa 1991) ; State v. Pressley, 290 Kan. 24, 29, 223 P.3d 299, 302 (2010) ; State v. Johnson, 363 So.2d 458, 460 (La.1978) ; 378 Mont. 182, 192, 342 P.3d 971, 978 (2015) (case below); and Ball v. Whyte, 170 W.Va. 417, 418, 294 S.E.2d 270, 271 (1982) (Speedy Trial Clause does not apply to sentencing delay). We reserve the question whether the Speedy Trial Clause applies to bifurcated proceedings in which, at the sentencing stage, facts that could increase the prescribed sentencing range are determined (e.g., capital cases in which eligibility for the death penalty hinges on aggravating factor findings). Nor do we decide whether the right reattaches upon renewed prosecution following a defendant's successful appeal, when he again enjoys the presumption of innocence. As Betterman points out, at the founding, sentence was often imposed promptly after rendition of a verdict. Brief for Petitioner 24-26. But that was not invariably the case. For the court's "own convenience, or on cause shown, [sentence could be] postpone[d] ... to a future day or term." 1 J. Bishop, Criminal Procedure § 1291, p. 767 (3d ed. 1880) (footnote omitted). See also 1 J. Chitty, A Practical Treatise on the Criminal Law 481 (1819) ("The sentence ... is usually given immediately after the conviction, but the court may adjourn to another day and then give judgment."). We do not mean to convey that provisions of the Sixth Amendment protecting interests other than the presumption of innocence are inapplicable to sentencing. In this regard, we have held that the right to defense counsel extends to some postconviction proceedings. See Mempa v. Rhay, 389 U.S. 128, 135-137, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), on which Betterman relies, is not to the contrary. There we concluded that a defendant, though already convicted and imprisoned on one charge, nevertheless has a right to be speedily brought to trial on an unrelated charge. Id., at 378, 89 S.Ct. 575. "[T]here is reason to believe," we explained in Smith, "that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large." Id., at 379. Smith is thus consistent with comprehension of the Speedy Trial Clause as protective of the presumptively innocent. Betterman suggests that an appropriate remedy for the delay in his case would be reduction of his sentence by 14 months-the time between his conviction and sentencing. See Tr. of Oral Arg. 6. We have not read the Speedy Trial Clause, however, to call for a flexible or tailored remedy. Instead, we have held that violation of the right demands termination of the prosecution. See, e.g., Alaska Rule Crim. Proc. 45 (2016); Ark. Rules Crim. Proc. 28.1 to 28.3 (2015); Cal.Penal Code Ann. § 1382 (West 2011) ; Colo.Rev.Stat. § 18-1-405 (2015) ; Conn. Rules Crim. Proc. 43-39 to 43-42 (2016); Fla. Rule Crim. Proc. 3.191 (2016); Haw. Rule Crim. Proc. 48 (2016); Ill. Comp. Stat., ch. 725, § 5/103-5 (West 2014) ; Ind. Rule Crim. Proc. 4 (2016); Iowa Rule Crim. Proc. 2.33 (2016); Kan. Stat. Ann. § 22-3402 (2014 Cum. Supp.); La.Code Crim. Proc. Ann., Art. 701 (West Cum. Supp. 2016); Mass. Rule Crim. Proc. 36 (2016); Neb.Rev.Stat. §§ 29-1207, 29-1208 (2008) ; Nev.Rev.Stat. § 178.556 (2013); N.Y. Crim. Proc. Law Ann. § 30.30 (West Cum. Supp. 2016); Ohio Rev.Code Ann. §§ 2945.71 to 2945.73 (Lexis 2014) ; Ore.Rev.Stat. §§ 135.745, 135.746, 135.748, 135.750, 135.752 (2015); Pa. Rule Crim. Proc. 600 (2016); S.D. Codified Laws § 23A-44-5.1 (Cum. Supp. 2015); Va.Code Ann. § 19.2-243 (2015) ; Wash. Rule Crim. Proc. 3.3 (2016) ; Wis. Stat. § 971.10 (2011-2012); Wyo. Rule Crim. Proc. 48 (2015). "In federal prosecutions," the Solicitor General informs us, "the median time between conviction and sentencing in 2014 was 99 days." Brief for United States as Amicus Curiae 31, n. 5. A good part of this time no doubt was taken up by the drafting and review of a presentence report. See Fed. Rule Crim. Proc. 32(c) -(g) (detailing presentence-report process). It is true that during this period the defendant is often incarcerated. See, e.g., § 3143(a) (bail presumptively unavailable for convicted awaiting sentence). Because postconviction incarceration is considered punishment for the offense, however, a defendant will ordinarily earn time-served credit for any period of presentencing detention. See § 3585(b) ; A. Campbell, Law of Sentencing § 9:28, pp. 444-445, and n. 4 (3d ed. 2004) ("[State c]rediting statutes routinely provide that any period of time during which a person was incarcerated in relation to a given offense be counted toward satisfaction of any resulting sentence."). That such detention may occur in a local jail rather than a prison is of no constitutional moment, for a convicted defendant has no right to serve his sentence in the penal institution he prefers. See Meachum v. Fano, 427 U.S. 215, 224-225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). See, e.g., Alaska Rule Crim. Proc. 32(a) (2016); Colo. Rule Crim. Proc. 32(b)(1) (2015); Del. Super. Ct. Crim. Rule 32(a)(1) (2003); Fla. Rule Crim. Proc. 3.720 (2016); Haw. Rule Penal Proc. 32 (a) (2016); Kan. Stat. Ann. § 22-3424(c) (2014 Cum. Supp.); Ky. Rule Crim. Proc. 11.02(1) (2016); La. Code Crim. Proc. Ann., Art. 874 (West 2016) ; Me. Rule Crim. Proc. 32(a)(1) (2015); Mass. Rule Crim. Proc. 28(b) (2016); Mich. Ct. Rule 6.425(E)(1) (2011); Mo. Sup. Ct. Rule 29.07(b)(1) (2011); Mont. Code Ann. § 46-18-115 (2015); Nev. Rev. Stat. § 176.015(1) (2013); N.H. Rule Crim. Proc. 29(a)(1) (2016); N.J. Ct. Rule 3:21-4(a) (2016); N.Y. Crim. Proc. Law Ann. § 380.30(1) (West Cum. Supp. 2016); N.D. Rule Crim. Proc. 32(a)(1) (2011); Ohio Rule Crim. Proc. 32(A) (2013); R.I. Super. Ct. Rule 32(a)(1) (2015); S.D. Codified Laws § 23A-27-1 (Cum. Supp. 2015); Vt. Rule Crim. Proc. 32(a)(1) (2010); Va. Sup. Ct. Rule 3A:17.1(b) (2012); W. Va. Rule Crim. Proc. 32(a) (2006); Wyo. Rule Crim. Proc. 32(c)(1) (2015). See, e.g., Ariz. Rule Crim. Proc. 26.3(a)(1) (2011); Ark. Rule Crim. Proc. 33.2 (2015); Cal.Penal Code Ann. § 1191 (West 2015) ; Ind. Rule Crim. Proc. 11 (2016); N.M. Rule Crim. Proc. 5-701(B) (2016); Ore. Rev. Stat. § 137.020(3) (2015); Pa. Rule Crim. Proc. 704(A)(1) (2016); Tenn. Code Ann. § 40-35-209(a) (2014); Utah Rule Crim. Proc. 22(a) (2015); Wash. Rev. Code § 9.94A.500(1) (2016 Cum. Supp.). These sentencing provisions are separate from state analogues to the Speedy Trial Act. See supra, at 1616, and n. 7. Relevant considerations may include the length of and reasons for delay, the defendant's diligence in requesting expeditious sentencing, and prejudice. * * * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
sc_adminaction_is	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. UNITED STATES v. PARKE, DAVIS & CO. No. 20. Argued November 10, 1959. Decided February 29, 1960. Daniel M. Friedman argued the cause for the United States. With him on the brief were Solicitor General Rankin, Acting Assistant Attorney General Bicks, Richard A. Solomon, Edward R. Kenney and Henry Geller. Gerhard A. Gesell argued the cause for appellee. With him on the brief were Edward S. Reid, Jr. and Weaver W. Dunnan. Mr. Justice Brennan delivered the opinion of the Court. The Government sought an injunction under § 4 of the Sherman Act against the appellee, Parke, Davis & Company, on a complaint alleging that Parke Davis conspired and combined, in violation of §§ 1 and 3 of the Act, with retail and wholesale druggists in Washington, D. C., and Richmond, Virginia, to maintain the wholesale and retail prices of Parke Davis pharmaceutical products. The violation was alleged to have occurred during the summer of 1956 when there was no Fair Trade Law in the District of Columbia or the State of Virginia. After the Government completed the presentation of its' evidence at the trial, and without hearing Parke Davis in defense, the District Court for the District of Columbia dismissed the complaint under Rule 41 (b) on the ground that upon the facts and the law the Government had not shown a right to relief. 164 F. Supp. 827. We noted probable jurisdiction of the Government’s direct appeal under § 2 of the Expediting Act. 359 U. S. 903. Parke Davis makes some 600 pharmaceutical products which it markets nationally through drug wholesalers and drug retailers. The retailers buy these products from the drug wholesalers or make large quantity purchases directly from Parke Davis. Sometime before 1956 Parke Davis announced a resale price maintenance policy in its wholesalers' and retailers’ catalogues. The wholesalers’ catalogue contained a Net Price Selling Schedule listing suggested minimum resale prices on Parke Davis products sold by wholesalers to retailers. The catalogue stated that it was Parke Davis’ continuing policy to deal only with drug wholesalers who observed that schedule and who sold only to drug retailers authorized by law to fill prescriptions. Parke Davis, when selling directly to retailers, quoted the same prices listed in the wholesalers’ Net Price Selling Schedule but granted retailers discounts for volume purchases. Wholesalers were not authorized to grant similar discounts. The retailers’ catalogue contained a schedule of minimum retail prices applicable in States with Fair Trade Laws and stated that this schedule was suggested for use also, in States not having such laws. These suggested minimum retail prices usually provided a 50% markup over cost on Parke Davis products purchased by retailers from wholesalers but, because of the volume discount, often in excess of 100% markup over cost on products purchased in large quantities directly from Parke Davis. There are some 260 drugstores in Washington, D. C.,' and some 100 in Richmond, Virginia. Many of the stores are units of Peoples Drug Stores, a large retail drug chain. There are five drug wholesalers handling Parke Davis products in the locality who do business with the drug retailers. The wholesalers observed the resale prices suggested by Parke Davis. However, during the spring and early summer of 1956 drug retailers in the two cities advertised and sold several Parke Davis vitamin products at prices substantially below the suggested minimum retail prices; in some instances the prices apparently reflected the volume discounts on direct purchases from Parke Davis since the products were sold below the prices listed in the wholesalers’ Net Price Selling Schedule. The Baltimore office manager of Parke Davis in charge of the sales district which included the two cities sought advice from his head office on how to handle this situation. The Parke Davis attorney advised that the company could legally “enforce an adopted policy arrived at unilaterally” to sell only to customers who observed the suggested minimum resale prices. He further advised that this meant that “we can lawfully say 'we will sell you only so long as you observe such minimum retail prices’ but cannot say 'we will sell you only if you agree to observe such minimum retail prices,’ since except as permitted by Fair Trade legislations [sic] agreements as to resale price maintenance are invalid.” Thereafter in July the branch manager put into effect a program for promoting observance of the suggested minimum retail prices by the retailers involved. The program contemplated the participation of the five drug wholesalers. In order to insure that retailers who did not comply would be cut off from sources of supply, representatives of Parke Davis visited the wholesalers and told them, in effect, that not only would Parke Davis refuse to sell to wholesalers who did not adhere to the policy announced in its catalogue, but also that it would refuse to sell to wholesalers who sold Parke Davis products to retailers who did not observe the suggested minimum retail prices. Each wholesaler was interviewed individually but each was informed that his competitors were also being apprised of this. The wholesalers without exception indicated a willingness to go along. Representatives called contemporaneously upon the retailers involved, individually, and told each that if he did not observe the suggested minimum retail prices, Parke Davis would refuse to deal with him, and that furthermore he would be unable to purchase any Parke Davis products from the wholesalers. Each of the retailers was also told that his competitors were being similarly informed. Several retailers refused to give any assurances of compliance and continued after these July interviews to advertise and sell Parke Davis products at prices below the suggested minimum retail prices. Their names were furnished by Parke Davis to the wholesalers. Thereafter Parke Davis refused to fill direct orders from such retailers and the wholesalers likewise refused to fill their orders. This ban was not limited to the Parke Davis products being sold below the suggested minimum prices but included all the company’s products, even those necessary to fill prescriptions. The president of Dart Drug Company, one of the retailers cut off, protested to the assistant branch manager of Parke Davis that Parke Davis was discriminating against him because a drugstore across the street, one of the Peoples Drug chain, had a sign in its window advertising Parke Davis products at cut prices. The retailer was told that if this were so the branch manager “would see Peoples and try to get them in line.” The branch manager testified at the trial that thereafter he talked to a vice-president of Peoples and that the following occurred: “Q. Well, now, you told Mr. Downey [the vice-president of Peoples] at this meeting, did you not, Mr. Powers, [the assistant branch manager of Parke Davis] that you noticed that Peoples were cutting prices? “A. Yes. “Q. And you told him, did you not, that it had .been the Parke, Davis policy for many years to do business only with individuals that maintained the scheduled prices? “A. I told Mr. Downey that we had a policy in our catalog, and that anyone that did not go along with our policy, we were not interested in doing business with them. “Q. . . . Now, Mr. Downey told you on the occasion of this visit, did he not, that Peoples would stop cutting prices and would abide by the Parke-Davis policy, is that right? “A. That is correct. “Q. When you went to call on Mr. Downey, you solicited his support of Parke, Davis policies, is not that right? “A. That is right. “Q. And he said, I will abide by your policy? “A. That is right.” The District Court found, apparently on the basis of this testimony, that “The Peoples’ representative stated that Peoples would stop cutting prices on Parke, Davis’ products and Parke, Davis continued to sell to Peoples.” But five retailers continued selling Parke Davis products at less than the suggested minimum prices from stocks on hand. Within a few weeks Parke Davis modified its program. Its officials believed that the selling at discount prices would be deterred, and the effects minimized of any isolated instances of discount selling which might continue, if all advertising of such prices were discontinued. In August the Parke Davis representatives again called on the retailers individually. When interviewed, the president of Dart Drug Company indicated that he might be willing to stop advertising, although continuing to sell at discount prices, if shipments to him were resumed. Each of the other retailers was then told individually by Parke Davis representatives that Dart was ready to discontinue advertising. Each thereupon said that if Dart stopped advertising he would also. On August 28 Parke Davis reported this reaction to Dart.' Thereafter all of the retailers discontinued advertising of Parke Davis vitamins at less than suggested minimum retail prices and Parke Davis and the wholesalers resumed sales of Parke Davis products to them. However, the suspension of advertising lasted only a month. One of the retailers again started newspaper advertising in September and, despite efforts of Parke Davis to prevent it, the others quickly followed suit. Parke Davis then stopped trying to promote the retailers’ adherence to its suggested resale prices, and neither it nor the wholesalers have since declined further dealings with them. A reason for this was that the Department of Justice, on complaint of Dart Drug Company, had begun an investigation of possible violation of the antitrust laws. The District Court held that the Government’s proofs did not establish a violation of the Sherman Act because “the actions of [Parke Davis] were properly unilateral and sanctioned by law under the doctrine laid down in the case of United States v. Colgate & Co., 250 U. S. 300 . . . .” 164 F. Supp., at 829. The Colgate case came to this Court on writ of error under the Criminal Appeals Act, 34 Stat. 1246, from a District Court judgment dismissing an indictment for violation of the Sherman Act. The indictment proceeded solely upon the theory of an unlawful combination between Colgate and its wholesale and retail dealers for the purpose and with the effect of procuring adherence on the part of the dealers to resale prices fixed by the company. However, the District Court construed the indictment as not charging a combination by agreement between Colgate and its customers to maintain prices. This Court held that it must disregard the allegations of the indictment since the District Court’s interpretation of the indictment was binding and that without an allegation of unlawful agreement there was no Sherman Act violation charged. The Court said: “The purpose of the Sherman Act is to prohibit monopolies, contracts and combinations which probably would unduly interfere with the free exercise of their rights by those engaged, or who wish to engage, in trade and commerce — in a word to' preserve the right of freedom to trade. In the absence of any purpose to create or maintain a monopoly, the act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal. And, of course, he may announce in advance the circumstances under which he will refuse to sell.” 250 U. S., at 307. The Government concedes for the purposes of this case that under the Colgate doctrine a manufacturer, having announced a price maintenance policy, may bring about adherence to it by refusing to deal with customers who do not observe that policy. The Government contends, however, that subsequent decisions of this Court compel the holding that what Parke Davis did here by entwining the wholesalers and retailers in a program to promote general compliance with its price maintenance policy went beyond mere customer selection and created combinations or conspiracies to enforce resale price maintenance in violation of § § 1 and 3 of the Sherman Act. The history of the Colgate doctrine is best understood by reference to a case which preceded the Colgate decision, Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373. Dr. Miles entered into written contracts with its customers obligating them to sell its medicine at prices fixed by it. The Court held tha,t the contracts were void because they violated both the common law and the Sherman Act. The Colgate decision distinguished Dr. Miles on the ground that the Colgate indictment did not charge that company with selling its products to dealers under agreements which obligated the latter not to resell except at prices fixed by the seller. The Colgate decision created some confusion and doubt as to the continuing vitality of the principles announced in Dr. Miles. This brought United States v. Schrader’s Son, Inc., 252 U. S. 85, to the Court. The case involved the prosecution of a components manufacturer for entering into price-fixing agreements with retailers, jobbers and manufacturers who used his products. The District Court dismissed, saying: “Granting the fundamental proposition stated in the Colgate case, that the manufacturer has an undoubted right to specify resale prices and refuse to deal with any one who fails to maintain the same, or, as further stated, the act does not restrict the long-recognized right of a trader or manufacturer engaged in an entirely private business freely to exercise his own independent discretion as to parties with whom he will deal, and that he of course may announce in advance the circumstances under which he will refuse to sell, it seems to me that it is a distinction without a difference to say that he may do so by the subterfuges and devices set forth in the [Colgate] opinion and not violate the Sherman Anti-Trust Act, yet if he had done the same thing in the form of a written agreement, adequate only to effectuate the same purpose, he would be guilty of a violation of the law. . . 264 F. 175, 184. This Court reversed, and said: “The court below misapprehended the meaning and effect of the opinion and judgment in [Colgate], We had no intention to overrule or modify the doctrine of Dr. Miles Medical Co. v. Park & Sons Co., where the effort was to destroy the dealers’ independent discretion through restrictive agreements.” 252 U. S., at 99. The Court went on to explain that the statement from Colgate quoted earlier in this opinion meant no more than that a manufacturer is not guilty of a combination or conspiracy if he merely “indicates his wishes concerning prices and declines further dealings with all who fail to observe them . . however there is unlawful combination where a manufacturer “enters into agreements— whether express or implied from a course of dealing or other circumstances — with all customers . . . which undertake to bind them to observe fixed resale prices.” Ibid. The next decision was Frey & Son, Inc., v. Cudahy Packing Co., 256 U. S. 208. That was a treble damage suit alleging a conspiracy in violation of the Sherman Act between the manufacturer and jobbers to maintain resale prices. The plaintiff recovered a judgment. The Court of Appeals for the Fourth Circuit reversed on the authority of Colgate. The Court of Appeals concluded: “There was no formal written or oral agreement with jobbers for the maintenance of prices” and in that circumstance held that under Colgate the trial court should have directed a verdict for the defendant. In holding that the Court of Appeals erred, this Court referred to the decision in Schrader as holding that the “essential agreement, combination or conspiracy might be implied from a course of dealing or other circumstances,” so that in Cudahy, “Having regard to the course of dealing and all the pertinent facts disclosed by the present record, we think whether there existed an unlawful combination or agreement between the manufacturer and jobbers was a question for the jury to decide, and that the Circuit Court of Appeals erred when it held otherwise.” 256 U. S., at 210. But the Court also held improper an instruction which was given to the jury that a violation of the Sherman Act might be found if the jury should find as facts that the defendant “indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and . . . [that] . . . defendant called this particular feature of this plan to their attention on very many different occasions, and . . . [that] . . . the great majority of them not only [expressed] no dissent from such plan, but actually [cooperated] in carrying it out by themselves selling at the prices named . . . .” 256 U. S. 210-211. However, the authority of this holding condemning the instruction has been seriously undermined by subsequent decisions which we are about to discuss. Therefore, Cudahy does not support the District Court’s action in this case, and we cannot follow it here. Less than a year after Cudahy was handed down, the Court decided Federal Trade Comm’n v. Beech-Nut Packing Co., 257 U. S. 441, which presented a situation bearing a marked resemblance to the Parke Davis program. In Beech-Nut the company had adopted a policy of refusing to sell its products to wholesalers or retailers who did not adhere to a schedule of resale prices. Beech-Nut later implemented this policy by refusing to sell to wholesalers who sold to retailers who would not adhere to the policy. To detect violations the company utilized code numbers on its products and instituted a system of reporting. When an offender was cut off, he would be reinstated upon the giving of assurances that he would maintain prices in the future. The Court construed the Federal Trade Commission Act to authorize the Commission to forbid practices which had a “dangerous tendency unduly to hinder competition or create monopoly.” 257 U. S., at 454. The Sherman Act was held to be a guide to what constituted an unfair method of competition. The company had urged that its conduct was entirely legal under the Sherman Act as interpreted by Colgate. The Court rejected this contention, saying that “the Beech-Nut system' goes far beyond the simple refusal to sell goods to persons who will not sell at stated prices, which in the Colgate Case was held to be within the legal right of the producer.” Ibid. The Court held further that the nonexistence of contracts covering the practices was irrelevant since “[t]he specific facts found show suppression of the freedom of competition by methods in which the company secures the cooperation of its distributors and customers, which are quite as effectual as agreements express or implied intended to accomplish the same purpose.” Id., at 455. That the Court considered that the Sherman Act violation thus established was dispositive of the issue before it is shown by the ground taken by Mr. Justice McReynolds in dissent. The parties had stipulated that there were no contracts covering the policy. Relying on his view of Colgate, he asked: “How can there be methods of cooperation . . . when the existence of the essential contracts is definitely excluded?” Id., at 459. The majority did not read Colgate as requiring such contracts; rather, the Court dispelled the confusion over whether a combination effected by contractual arrangements, express or implied, was necessary to a finding of Sherman Act violation by limiting Colgate to a holding that when the only act specified in the indictment amounted to saying that the trader had exercised his right to determine those with whom he would deal, and to announce the circumstances under which he would refuse to sell, no Sherman Act violation was made out. However, because Beech-Nut’s methods were as effective as agreements in producing the result that “all who would deal in the company’s products are constrained to sell at the suggested prices,” 257 U. S., at 455, the Court held that the securing of the customers’ adherence by such methods constituted the creation of an unlawful combination to suppress price competition among the retailers. That Beech-Nut narrowly limited Colgate and announced principles which subject to Sherman Act liability the producer who secures his customers’ adherence to his resale prices by methods which go beyond the simple refusal to sell to customers who will not resell at stated prices, was made clear in United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 722: “The Beech-Nut case recognizes that a simple refusal to sell to others who do not maintain the first seller’s fixed resale prices is lawful but adds as to the Sherman Act, ‘He [the seller] may not, consistently with the act, go beyond the exercise of this right, and by contracts or combinations, express or implied, unduly hinder or obstruct the free and natural flow of commerce in the channels of interstate trade.’ 257 U. S. at 453. The Beech-Nut Company, without agreements, was found to suppress the freedom of competition by coercion of its customers through special agents of the company, by reports of competitors about customers who violated resale prices, and by boycotts of price cutters. . . .” Bausch & Lomb, like the instant case, was an action by the United States to restrain alleged violations of §§ 1 and 3 of the Sherman Act. The Court, relying on Beech-Nut, held that a distributor, Soft-Lite Lens Company, Inc., violated the Sherman Act when, as was the case with Parke Davis, the refusal to sell to wholesalers was not used simply to induce acquiescence of the wholesalers in the distributor’s published resale price list; the wholesalers “accepted Soft-Lite’s proffer of a plan of distribution by cooperating in prices, limitation of sales to and approval of retail licensees. That is sufficient. . . . Whether this conspiracy and combination was achieved by agreement or by acquiescence of the wholesalers coupled with assistance in effectuating its purpose is immaterial.” 321 U. S., at 723. Thus, whatever uncertainty previously existed as to the scope of the Colgate doctrine, Bausch & Lomb and Beech-Nut plainly fashioned its dimensions as meaning no more than that a simple refusal to sell to customers who will not resell at prices suggested by the seller is permissible under the Sherman Act. In other words, an unlawful combination is not just such as arises from a price maintenance agreement, express or implied; such a combination is also organized if the producer secures adherence to his suggested prices by means which go beyond his mere declination to sell to a customer who will not observe his announced policy. In the cases decided before Beech-Nut the Court’s inquiry was directed to whether the manufacturer had entered into illicit contracts, express or implied. The District Court in this case apparently assumed that the Government could prevail only by establishing a contractual arrangement, albeit implied, between Parke Davis and its customers. Proceeding from the same premise Parke Davis strenuously urges that Rule 52 of the Rules of Civil Procedure compels an affirmance of the District Court since under that Rule the finding that there were no contractual arrangements should “not be set aside unless clearly erroneous.” But Rule 52 has no application here. The District Court premised its ultimate finding that Parke Davis did not violate the Sherman Act on an erroneous interpretation of the standard to be applied. The Bausch & Lornb and Beech-Nut decisions cannot be read as merely limited to particular fact complexes justifying the inference of an agreement in violation of the Sherman Act. Both cases teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements. The Sherman Act forbids combinations of traders to suppress competition. True, there results the same economic effect as is accomplished by a prohibited combination to suppress price competition if each customer, although induced to do so solely by a manufacturer’s announced policy, independently decides to observe specified resale prices. So long as Colgate is not overruled, this result is tolerated but only when it is the consequence of a mere refusal to sell in the exercise of the manufacturer’s right “freely to exercise his own independent discretion as to parties with whom he will deal.” When the manufacturer’s actions, as here, go beyond mere announcement of his policy and the simple refusal to deal, and he employs other means which effect adherence to his resale prices, this countervailing consideration is not present and therefore he has put together a combination in violation of the Sherman Act. Thus, whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did rather than by the words they used. See Eastern States Retail Lumber Dealers’ Assn. v. United States, 234 U. S. 600, 612. Because of the nature of the District Court’s error we are reviewing a question of law, namely, whether the District Court applied the proper standard to essentially undisputed facts. See Interstate Circuit v. United States, 306 U. S. 208; United States v. Masonite Corp., 316 U. S. 265; United States v. United States Gypsum Co., 333 U. S. 364; United States v. du Pont, 353 U. S. 586; and also United States v. Felin & Co., 334 U. S. 624; Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147. The program upon which Parke Davis embarked to promote general compliance with its suggested resale prices plainly exceeded the limitations of the Colgate doctrine and under Beech-Nut and Bausch & Lomb effected arrangements which violated the Sherman Act. Parke Davis did not content itself with announcing its policy regarding retail prices and following this with a simple refusal to have business relations with any retailers who disregarded that policy. Instead Parke Davis used the refusal to deal with the wholesalers in order to elicit their willingness to deny Parke Davis products to retailers and thereby help gain the retailers’ adherence to its suggested minimum retail prices. The retailers who disregarded the price policy were promptly cut off when Parke Davis supplied the wholesalers with their names. The large retailer who said he would “abide” by the price policy, the multi-unit Peoples Drug chain, was not cut off. In thus involving the wholesalers to stop the flow of Parke Davis products to the retailers, thereby inducing retailers’ adherence to its suggested retail prices, Parke Davis created a combination with the retailers and the wholesalers to maintain retail prices and violated the Sherman Act. Although Parke Davis’ originally announced wholesalers’ policy would not under Colgate have violated the Sherman Act if its action thereunder was the simple refusal without more to deal with wholesalers who did not observe the wholesalers’ Net Price Selling Schedule, that entire policy was tainted with the “vice of . . . illegality,” cf. United States v. Bausch & Lomb Optical Co., 321 U. S. 707, 724, when Parke Davis used it as the vehicle to gain the wholesalers’ participation in the program to effectuate the retailers’ adherence to the suggested retail prices. Moreover, Parke Davis also exceeded the “limited dispensation which [Colgate] confers,” Times-Picayune Pub. Co. v. United States, 345 U. S. 594, 626, in another way, which demonstrates how far Parke Davis went beyond the limits of the Colgate doctrine. With regard to the retailers’ suspension of advertising, Parke Davis did not rest with the simple announcement to the trade of its policy in that regard followed by a refusal to sell to the retailers who would not observe it. First it discussed the subject with Dart Drug. When Dart indicated willingness to go along the other retailers were approached and Dart’s apparent willingness to cooperate was used as the lever to gain their acquiescence in the program. Having secured those acquiescences Parke Davis returned to Dart Drug with the report of that accomplishment. Not until all this was done was the advertising suspended and sales to all the retailers resumed. In this manner Parke Davis sought assurances of compliance and got them, as well as the compliance itself. It was only by actively bringing about substantial unanimity among the competitors that Parke Davis was able to gain adherence to its policy. It must be admitted that a seller’s announcement that he will not deal with customers who do not observe his policy may tend to engender confidence in each customer that if he complies his competitors will also. But if a manufacturer is unwilling to rely on individual self-interest to bring about general voluntary acquiescence which has the collateral effect of eliminating price competition, and takes affirmative action to achieve uniform adherence by inducing each customer to adhere to avoid such price competition, the customers’ acquiescence is not then a matter of individual free choice prompted alone by the desirability of the product. The product then comes packaged in a competition-free wrapping — a valuable feature in itself — by virtue of concerted action induced by the manufacturer. The manufacturer is thus the organizer of a price-maintenance combination or conspiracy in violation of the Sherman Act. Under that Act “competition not combination, should be the law of trade,” National Cotton Oil Co. v. Texas, 197 U. S. 115, 129, and “a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal per se.” United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 223. And see United States v. McKesson & Robbins, Inc., 351 U. S. 305; Kiefer-Stewart Co. v. Seagram & Sons, Inc., 340 U. S. 211; Eastern States Retail Lumber Dealers’ Assn. v. United States, 234 U. S. 600. The District Court also alternatively rested its judgment of dismissal on the holding that “. . . even if the unlawful conditions alleged in the Complaint had actually been proved, since 1956 they no longer existed, and [there is] no reason to believe, or even surmise, the unlawful acts alleged can possibly be repeated . . . .” 164 F. Supp. 827, 830. We are of the view that the evidence does not justify any such finding. The District Court stated that “the compelling reason for defendant’s so doing [ceasing its efforts] was forced upon it by business and economic conditions in its field.” There is no evidence in the record that this was the reason and any such conclusion must rest on speculation. It does not appear even that Parke Davis has announced to the trade that it will abandon the practices we have condemned. So far as the record indicates any reason, it is that Parke Davis stopped its efforts because the Department of Justice had instituted an investigation. The president of Dart Drug Company testified that he had told the Parke Davis representatives in August that he had just been talking to the Department of Justice investigators. He stated that the Parke Davis representatives had said that “they [knew] that the Antitrust Division was investigating them all over town,” and that this was one of their reasons for visiting him. The witness testified that it was on this occasion, after the discussion of the investigation, that the Parke Davis representatives finally stated that if Dart would stop advertising, Parke Davis “would resume shipment, in so far as there was an Antitrust investigation going on.” Moreover Parke Davis’ own employees, who were called by the Government as witnesses at the trial, admitted that they were aware of the investigation at the time and that the investigation was a reason for the discontinuance of the program. It seems to us that if the investigation would prompt Parke Davis to discontinue its efforts, even more so would the litigation which ensued. On the record before us the Government is entitled to the relief it seeks. The courts have an obligation, once a violation of the antitrust laws has been established, to protect the public from a continuation of the harmful and unlawful activities. A trial court’s wide discretion in fashioning remedies is not to be exercised to deny relief altogether by lightly inferring an abandonment of the unlawful activities from a cessation which seems timed to anticipate suit. See United States v. Oregon State Medical Society, 343 U. S. 326, 333. The judgment is reversed and the case remanded to the District Court with directions to enter an appropriate judgment enjoining Parke Davis from further violations of the Sherman Act unless the company elects to submit evidence in defense and refutes the Government’s right to injunctive relief established by the present record. It is so ordered. The pertinent provision of Sections 1, 3 and 4 of the Act of July 2, 1890, 26 Stat. 209, as amended (15 U. S. C. §§ 1, 3, 4), commonly known as the Sherman Act, are as follows: “Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal .... Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a misdemeanor . . . .” “Sec. 3. Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in . . . the District of Columbia, or in restraint of trade or commerce . . . between the District of Columbia and any State or States or foreign nations, is hereby declared illegal. Every person who shall make any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor .... “Sec. 4. The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of this act; and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney-General, to institute proceedings in equity to prevent and restrain such violations. . . .” Congress has provided that where a State adopts a “Fair Trade Law” which permits sellers under certain circumstances to make price-fixing agreements with purchasers, such agreements shall not be held illegal under the Sherman Act, 15 U. S. C. § 1. The Fair Trade Laws adopted in 16 States have been invalidated by their state courts on state grounds. H. R. Rep. No. 467, 86th Cong., 1st Sess. 6-7. On June 9, 1959, the House Committee on Interstate Commerce favorably reported a bill which, if passed, would enact a National Fair Trade Practice Act. 32 Stat. 823, 15 U. S. C. § 29, as amended by § 17 of the Act of June 25, 1948, 62 Stat. 989. When Parke Davis learned from a wholesaler’s invoice that he had filled an order of one of the retailers, Parke Davis protested but was satisfied when the wholesaler explained that this was an oversight. Except that in December 1957, Parke Davis informed Dart Drug Company that it did not intend to have any further dealings with Dart. The latter has, however, continued to purchase Parke Davis products from wholesalers. Thus, Dart Drug cannot receive the volume discount on large quantity purchases. Indeed, if Peoples resumed adherence to the Parke Davis price scale after the interview between its vice-president and Parke Davis’ assistant branch manager, p. 34, supra, shows that Parke Davis and Peoples entered into a price maintenance agreement, express, tacit or implied, such agreement violated the Sherman Act without regard to any wholesalers’ participation. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
sc_jurisdiction	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. GARDNER v. BRODERICK, POLICE COMMISSIONER OF THE CITY OF NEW YORK, et al. No. 635. Argued April 30, 1968. Decided June 10, 1968. Ronald Podolsky argued the cause and filed briefs for appellant. J. Lee Rankin argued the cause for appellees. With him on the brief were Norman Redlich, Stanley Buchs-baum, and Robert T. Hartmann. Michael J. Silverherg filed a brief for the Patrolmen’s Benevolent Association of the City of New York, Inc., as amicus curiae, urging reversal. Me. Justice Fortas delivered the opinion of the Court. Appellant brought this action in the Supreme Court of the State of New York seeking reinstatement as a New York City patrolman and back pay. He claimed he was unlawfully dismissed because he refused to waive his privilege against self-incrimination. In August 1965, pursuant to subpoena, appellant appeared before a New York County grand jury which was investigating alleged bribery and corruption of police officers in connection with unlawful gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, but he was asked to sign a “waiver of immunity” after being told that he would be fired if he did not sign. Following his refusal, he was given an administrative hearing and was discharged solely for this refusal, pursuant to § 1123 of the New York City Charter. The New York Supreme Court dismissed his petition for reinstatement, 27 App. Div. 2d 800, 279 N. Y. S. 2d 150 (1967), and the New York Court of Appeals affirmed. 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967). We noted probable jurisdiction. 390 U. S. 918 (1968). Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory, and the need fully to implement its guaranty. See Spevack v. Klein, 385 U. S. 511 (1967); Counselman v. Hitchcock, 142 U. S. 547, 585-586 (1892); Albertson v. SACB, 382 U. S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U. S. 1 (1964); Murphy v. Waterfront Commission, 378 U. S. 52 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, at 585-586; Murphy v. Waterfront Commission, supra, at 79. The question presented in the present case is whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal. About a year and a half after New York City discharged petitioner for his refusal to waive this immunity, we decided Garrity v. New Jersey, 385 U. S. 493 (1967). In that case, we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution. Garrity had not signed a waiver of immunity and no immunity statute was applicable in the circumstances. Our holding was summarized in the following statement (at 500): “We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” The New York Court of Appeals considered that Garrity did not control the present case. It is true that Garrity related to the attempted use of compelled testimony. It did not involve the precise question which is presented here: namely, whether a State may discharge an officer for refusing to waive a right which the Constitution guarantees to him. The New York Court of Appeals also distinguished our post -Garrity decision in Spevack v. Klein, supra. In Spevack, we ruled that a lawyer could not be disbarred solely because he refused to testify at a disciplinary proceeding on the ground that his testimony would tend to incriminate him. The Court of Appeals concluded that Spevack does not control the present case because different considerations apply in the case of a public official such as a policeman. A lawyer, it stated, although licensed by the state is not an employee. This distinction is now urged upon us. It is argued that although a lawyer could not constitutionally be confronted with Hobson’s choice between self-incrimination and forfeiting his means of livelihood, the same principle should not protect a policeman. Unlike the lawyer, he is directly, immediately, and entirely responsible to the city or State which is his employer. He owes his entire loyalty to it. He has no other “client” or principal. He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer. Unlike the lawyer who is directly responsible to his client, the policeman is either responsible to the State or to no one. We agree that these factors differentiate the situations. If appellant, a policeman, had refused to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself, Garrity v. New Jersey, supra, the privilege against self-incrimination would not have been a bar to his dismissal. The facts of this case, however, do not present this issue. Here, petitioner was summoned to testify before a grand jury in an investigation of alleged criminal conduct. He was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right. He was dismissed for failure to relinquish the protections of the privilege against self-incrimination. The Constitution of New York State and the City Charter both expressly provided that his failure to do so, as well as his failure to testify, would result in dismissal from his job. He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege; Garrity v. New Jersey, supra. We need not speculate whether, if appellant had executed the waiver of immunity in the circumstances, the effect of our subsequent decision in Garrity v. New Jersey, supra, would have been to nullify the effect of the waiver. New York City discharged him for refusal to execute a document purporting to waive his constitutional rights and to permit prosecution of himself on the basis of his compelled testimony. Petitioner could not have assumed — and certainly he was not required to assume — that he was being asked to- do an idle act of no legal effect. In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss of employment. It is clear that petitioner’s testimony was demanded before the grand jury in part so that it might be used to prosecute him, and not solely for the purpose of securing an accounting of his performance of his public trust. If the latter had been the only purpose, there would have been no reason to seek to compel petitioner to waive his immunity. Proper regard for the history and meaning of the privilege against self-incrimination, applicable to the States under our decision in Malloy v. Hogan, 378 U. S. 1 (1964), and for the decisions of this Court, dictate the conclusion that the provision of the New York City Charter pursuant to which petitioner was dismissed cannot stand. Accordingly, the judgment is Reversed. Mr. Justice Black concurs in the result. [For opinion of Mr. Justice Harlan, concurring in the result, see post, p. 285.] The Assistant District Attorney said to appellant: “You understand . . . that under the Constitution of the United States, as well as the Constitution of New York, no one can be compelled to testify against himself, and that he has a right, the absolute right to refuse to answer any questions that would tend to incriminate him?” Appellant was told: “You understand . . . that under the Constitution of New York, as well as the Charter of the City of New York, ... a public officer, which includes a police officer, when called before a Grand Jury to answer questions concerning the conduct of his public office and the performance of his duties is required to sign a waiver of immunity if he wishes to retain that public office?” The document appellant was asked to sign was phrased as follows: “I . . . do hereby waive all benefits, privileges, rights and immunity which I would otherwise obtain from indictment, prosecution, and punishment for or on account of, regarding or relating to any matter, transaction or things, concerning the conduct of my office or the performance of my official duties, or the property, government or affairs of the State of New York or of any county included within its territorial limits, or the nomination, election, appointment or official conduct of any officer of the city or of any such county, concerning any of which matters, transactions or things I may testify or produce evidence documentary or otherwise, before the [blank] Grand Jury in the County of New York, in the investigation being conducted by said Grand Jury.” That section provides: “If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon .any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.” Section 6 of Article I of the New York Constitution provides: “No person shall be . . . compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his present office ... or the performance of his official duties . . . refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years . . . and shall be removed from his present office by the appropriate authority or shall forfeit his present office at the suit of the attorney-general.” Cf. Spevack v. Klein, supra, at 519-520 (concurring in judgment). The statements in my separate opinion in Spevack v. Klein, supra, at 519-520, to which the New York Court of Appeals referred, are expressly limited to situations of this kind. See Miranda v. Arizona, 384 U. S. 436, 458-466 (1966), and authorities cited therein. See, e. g., Griffin v. California, 380 U. S. 609 (1965); Malloy v. Hogan, supra. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
sc_issuearea	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. UNITED STATES v. WONG No. 74-635. Argued December 6, 1976 Decided May 23, 1977 William F. Sheehan III argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, and Deputy Solicitor General Frey. Allan Brotsky argued the cause and filed a brief for respondent. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari to decide whether a witness who, while under investigation for possible criminal activity, is called to testify before a grand jury and who is later indicted for perjury committed before the grand jury, is entitled to have the false testimony suppressed on the ground that no effective warning of the Fifth Amendment privilege to remain silent was given. (1) Rose Wong, the respondent, came to the United States from China in early childhood. She was educated in public schools in San Francisco, where she completed eight grades of elementary education. Because her husband does not speak English, respondent generally speaks in her native tongue in her household. In September 1973 respondent was subpoenaed to testify before a federal grand jury in the Northern District of California. The grand jury was investigating illegal gambling and obstruction of state and local law enforcement in San Francisco. At the time of her grand jury appearance, the Government had received reports that respondent paid bribes to two undercover San Francisco police officers -and agreed to make future payments to them. Before any interrogation began, respondent was advised of her Fifth Amendment privilege; she then denied having given money or gifts to police officers or having discussed gambling activities with them. It is undisputed that this testimony was false. (2) Respondent was indicted for perjury in violation of 18 U. S. C. § 1623. She moved to dismiss the indictment on the ground that, due to her limited command of English, she had not understood the warning of her right not to answer incriminating questions. At a suppression hearing, defense counsel called an interpreter and two language specialists as expert witnesses and persuaded the District Judge that respondent had not comprehended the prosecutor’s explanation of the Fifth Amendment privilege; the court accepted respondent’s testimony that she had thought she was required to answer all questions. Based upon informal oral findings to this effect, the District Court ordered the testimony suppressed as evidence of perjury. Accepting the District Court’s finding that respondent had not understood the warning, the Court of Appeals held that due process required suppression where “the procedure employed by the government was fraught with the danger ... of placing [respondent] in the position of either perjuring or incriminating herself.” 553 F. 2d 576, 578 (CA9 1974). Absent effective warnings of the right to remain silent, the court concluded, a witness suspected of criminal involvement by the Government will “not understand the right to remain silent, and [will] be compelled by answering to subject himself to criminal liability.” Ibid. In the Court of Appeals’ view, the ineffectiveness of the prosecutor’s warning meant that “the unfairness of the procedure remained undissipated, and due process requires the testimony be suppressed.” Id., at 579'. Following our decision in United States v. Mandujano, 425 U. S. 564 (1976), we granted certiorari. 426 U. S. 905 (1976). We now reverse. (3) Under findings which the Government does not challenge, respondent, in legal effect, was unwarned of her Fifth Amendment privilege. Resting on the finding that no effective warning was given, respondent contends that both the Fifth Amendment privilege and Fifth Amendment due process require suppression of her false testimony. As to her claim under the Fifth Amendment testimonial privilege, respondent argues that, without effective warnings, she was in effect forced by the Government to answer all questions, and that her choice was confined either to incriminating herself or lying under oath. From this premise, she contends that such testimony, even if knowingly false, is inadmissible against her as having been obtained in violation of the constitutional privilege. With respect to her due process claim, she contends, and the Court of Appeals held, that, absent warnings, a witness is placed in the dilemma of engaging either in self-incrimination or perjury, a situation so inherently unfair as to require suppression of perjured testimony. We reject both contentions. As our holding in Mandujano makes clear, and indeed as the Court of Appeals recognized, the Fifth Amendment privilege does not condone perjury. It grants a privilege to remain silent without risking contempt, but it “does not endow the person who testifies with a license to commit perjury.” Glickstein v. United States, 222 U. S. 139, 142 (1911). The failure to provide a warning of the privilege, in addition to the oath to tell the truth, does not call for a different result. The contention is that warnings inform the witness of the availability of the privilege and thus eliminate the claimed dilemma of self-incrimination or perjury. Cf. Garner v. United States, 424 U. S. 648, 657-658 (1976). However, in United States v. Knox, 396 U. S. 77 (1969), the Court held that even the predicament of being forced to choose between incriminatory truth and falsehood, as opposed to refusing to answer, does not justify perjury. In that case, a taxpayer was charged with filing false information on a federal wagering tax return. At the time of the offense, federal law commanded the filing of a tax return even though' the effect of that requirement, in some circumstances, was to make it a crime not to supply the requested information to the Government. To justify the deliberate falsehood contained in his tax return, Knox, like respondent here, argued that the false statements were not made voluntarily, but were compelled by the tax laws and therefore violated the Fifth Amendment. The Court rejected that contention. Although it recognized that tax laws which compelled filing the returns injected an “element of pressure into Knox’s predicament at the time he filed the forms,” id., at 82, the Court held that by answering falsely the taxpayer took “a course that the Fifth Amendment gave him no privilege to take.” Ibid. In this case respondent stands in no better position than Knox; her position, in fact, is weaker since her refusal to give inculpatory answers, unlike Knox, would not have constituted a crime. It follows that our holding in Mandujano, that the Fifth Amendment privilege does not protect perjury, is equally applicable to this case. (4) Respondent also relies on the Court of Appeals’ holding that the failure to inform a prospective defendant of the constitutional privilege of silence at the time- of a grand jury appearance is so fundamentally unfair as to violate due process. In the Court of Appeals’ view, the Government’s conduct in this case, although in good faith, so thwarted the adversary model of our criminal justice system as to require suppression of the testimony in any subsequent perjury case based on the falsity of the sworn statement. We disagree. First, the “unfairness” urged by respondent was also present in the taxpayer’s predicament in Knox, yet the Court there found no constitutional infirmity in the taxpayer’s conviction for making false statements on his returns. Second, accepting, arguendo, respondent’s argument as to the dilemma posed in the grand jury procedures here, perjury is nevertheless not a permissible alternative. The “unfairness” perceived by respondent is not the act of calling a prospective defendant to testify before a grand jury but rather the failure effectively to inform a prospective defendant of the Fifth Amendment privilege, Thus, the core of respondent’s due process argument, and of the Court of Appeals’ holding, in reality relates to the protection of values served by the Fifth Amendment privilege, a privilege which does not protect perjury. Finally, to characterize these proceedings as “unfair” by virtue of inadequate Fifth Amendment warnings is essentially to say that the Government acted unfairly or oppressively by asking searching questions of a witness uninformed of the privilege. But, as the Court has consistently held, perjury is not a permissible way of objecting to the Government’s questions. “Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them.” (Footnote omitted.) Bryson v. United States, 396 U. S. 64, 72 (1969); United States v. Mandujano, 425 U. S., at 577, 585 (Brennan, J., concurring in judgment); id., at 609 (Stewart, J., concurring in judgment). Indeed, even if the Government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely. United States v. Knox, supra, at 82-83. If the citizen answers the question, the answer must be truthful. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. In United States v. Mandujano, 425 U. S. 564 (1976), we held that false testimony by a grand jury witness suspected by federal prosecutors of criminal involvement was admissible in a subsequent perjury trial. Although the witness in Mandujano had been warned of the Fifth Amendment privilege, the Court of Appeals had mandated suppression of the perjurious testimony on the ground that the witness had not been provided with full Miranda warnings. In this Court, three separate opinions expressed varying reasons, but all eight participating Justices agreed that the perjured testimony was improperly suppressed. The prosecutor gave respondent the following warnings: “You . . . need not answer any question which you feel may ... incriminate you. . . . [Y]ou [have] the right to refuse to answer any question which you feel might incriminate you. ... [I]f you do give an answer, that answer may be used against you in a subsequent criminal prosecution, if in fact the Government should decide to prosecute you for any crime. . . .' You also have the right to consult with an attorney prior to answering any question here today. ... [I]f you cannot afford an attorney, ... we would see that an attorney is afforded to represent you. ... [I]f you do answer any questions and should you knowingly give any false testimony, or false answers to any questions, you would be subject to prosecution for the crime of perjury under the Federal Laws.” 2 Tr. 52-53. The District Court found, however, that respondent understood the oath and the consequences of giving false testimony, and that she understood the questions that were asked of her. Thus, no issue regarding the due process consequences, if any, of the absence of either factor was addressed by the District Court or the Court of Appeals. The Court of Appeals rejected respondent’s argument that the Fifth Amendment privilege required suppression. The court held: “[T]he privilege against self-incrimination does not afford a defense to a witness under compulsion who, rather than refusing to answer (or, if improperly compelled to answer, giving incriminating answers), gives false testimony.” 553 F. 2d 576, 577. Knox filed the false return prior to this Court’s decisions in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968). The Court of Appeals did not suggest why, assuming a due process violation had occurred, suppression of respondent's testimony was constitutionally required. Cf. United States v. Mandujano, 425 U. S., at 594-598 (Brennan, J., concurring in judgment). There is no constitutional prohibition against summoning potential defendants to testify before a grand jury. United States v. Dionisio, 410 U. S. 1, 10 n. 8 (1973); United States v. Mandujano, supra, at 584 n. 9, 594 (Brennan, J., concurring in judgment). The historic availability of the Fifth Amendment privilege in grand jury proceedings, Counselman v. Hitchcock, 142 U. S. 547 (1892), attests to the Court’s recognition that potentially incriminating questions will frequently be asked of witnesses subpoenaed to testify before the grand jury; the very purpose of the inquiry is to ferret out criminal conduct, and sometimes potentially guilty persons are prime sources of information. 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_source	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. NATIONAL FARMERS UNION PROPERTY & CASUALTY COMPANY, Appellant, v. Leonard TUCKER; Cecil Wright; Wayne Wright; and Ed Erwin, Administrator of the Estate of Sylvia Wright, deceased, Appellees. No. 5545. United States Court of Appeals Tenth Circuit. Aug. 23, 1957. Gus Rinehart (of Butler, Rinehart & Morrison), Oklahoma City, Okl., for appellant. Jack I. Gaither, Tulsa, Old., John Q. McCabe, Cleveland, Okl., Trower, Ferguson & Gaither, and C. A. Back, Jr., Tulsa, Okl., for appellees. Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges. HUXMAN, Circuit Judge. This is an appeal by National Farmers Union Property and Casualty Company, herein called National, from an adverse judgment in a declaratory judgment action, in which it sought a judgment declaring that it was not liable to defend any actions under the terms of an automobile insurance policy, issued to one Leonard Tucker, and that there was no liability against it because of such actions. The facts out of which this controversy arose are these. National issued to Leonard Tucker an automobile insurance policy covering a 1953 pick-up truck, owned by him, which contained the usual provisions found in such a policy and a provision imposing the duty to defend actions brought against the insured. It also contained the usual provision of such policies extending coverage to those using the automobile with the consent of the insured. It also contained a clause requiring the insured to cooperate with the company in case actions were filed or asserted against the insured for which there might be liability under the policy. While the policy was in force, Sylvia Wright, Tucker’s daughter, was driving the truck with his consent. The truck was involved in an accident in which she was killed. Riding with her at the time were her husband, Wayne Wright, and her father-in-law, Cecil Wright, both of whom were injured. Sylvia Wright, at the time of her death, was a resident of Pawnee County, Oklahoma. Wayne Wright, the surviving husband, waived his prior right of appointment as administrator of her estate under Oklahoma law and nominated Wayne Lawrence of Cleveland, Oklahoma, to whom letters of administration were issued by the County Court of Pawnee County, Oklahoma. Thereafter, the decedent’s father, Leonard Tucker, replaced Wayne Lawrence as administrator by order of the Pawnee County Court, and he subsequently was replaced by H. Gene Seigel. Again, thereafter, on March 14, 1956, on Wayne Wright’s petition, Seigel was replaced as administrator by Ed L. Erwin of Tulsa County, Oklahoma. After the appointment of Erwin as administrator, both Cecil Wright and Wayne Wright filed suit against the administrator in Tulsa County, Oklahoma, seeking recovery for personal injuries allegedly sustained as a result of the accident. It was alleged in each action that Sylvia Wright was guilty of negligence, causing plaintiffs’ injuries. Erwin, the administrator of the estate, demanded that National defend the actions. This action was then instituted for a declaratory judgment, declaring there was no liability under the policy and no duty to defend because of a failure to cooperate under the terms of the policy. The court concluded that there was no duty on Wayne Wright to cooperate with the company and that his action in securing the appointment of an administrator for Sylvia Wright’s estate in Tulsa County rather than in Pawnee' County, the County of her residence, did not constitute a lack of cooperation or a violation of the terms of the policy. Based upon these conclusions, the court denied National the judgment it sought. We think the court correctly concluded that the policy imposed no duty on Wayne Wright as the next of kin of Sylvia Wright, deceased, or as legal representative, to cooperate. But the decision need not be predicated on this ground because we feel that the court correctly concluded there was in any event no failure to cooperate. The basis for the assertion that Wayne Wright failed to cooperate was that he procured the appointment of the administrator in Tulsa County rather than in Pawnee County of which she was a resident at the time of her death. There is no claim that the administrator must be appointed from the county in which the deceased lived and, as far as we know, there is no authority to that effect. A resident of any county in Oklahoma may be appointed administrator of the estate. There is no Oklahoma statute limiting the appointment to persons residing in the county of the court having jurisdiction of the estate. No failure to cooperate on the part of Wayne Wright can be inferred because he did what he had a right to do with respect to securing the appointment of administrator for his wife’s estate. Appellant apparently concedes that Wayne Wright had a right to step aside and secure the appointment of someone else as administrator, but it seeks to imply some improper motives amounting to failure to cooperate in having a resident of Tulsa County appointed by the County Court of Pawnee County because, as is suggested, that would permit suits to be filed in the Tulsa County Court rather than in the Pawnee County Court, a court of competent jurisdiction. In response to a question by the trial court whether it should “take judicial notice that your position is not as good in the District Court of Tulsa County as it would be in the District Court of Pawnee County?” appellant’s attorney replied, “I think, if the Court please, you can take judicial notice that there must be some underlying reason for them bringing it over here * * * This makes clear appellant’s position, but a mere suspicion of an ulterior motive is not sufficient upon which to predicate a finding of failure to. cooperate, assuming there was a duty to cooperate. Finally, it is urged that the filing of the two damage suits in Tulsa County prejudiced National in the defense of the actions because all of the witnesses are residents of Pawnee County. From this National implies that there was a failure to cooperate. It is not conceded nor does the record reveal that all the witnesses are from Pawnee County. There does seem to be substantial agreement that the only witnesses to the accident are Cecil and Wayne Wright. They reside in Pawnee County. The record does not indicate that a large number of witnesses will be called. It may be that trying the two suits in Tulsa County rather than in Pawnee County may cause some inconvenience to National but even that is not clear from the record. In any event, it is not made to appear that the defense of the two actions in Tulsa County will be greatly burdensome, vexatious or unduly expensive. Under the facts as they appear in the record, we are of the view that the court correctly concluded that in any event there was no failure to cooperate by securing the appointment of a resident of Tulsa County as administrator of Sylvia Wright’s estate. Affirmed. . Title 58 O.S.A. § 1 provides for probate jurisdiction of the county court to grant letters of administration. Title 58 O.S.A. § 5 provides that letters of administration may be granted in the county in -which the decedent was a resident at the time of his death, in whatever place he may have resided. Title 58 O.S.A. § 122 provides for priority of persons entitled to letters of administration. Title 58 O.S.A. § 134 provides that “Administration may be granted to one or more competent persons, although not entitled to the same, at the written request of the person entitled, filed in the court. * * * ” Question: What forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_usc2sect	2000	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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Ivory WATSON and Calley Watson, in Their Individual Capacity and as Representative Members of a Class Similarly Affected, Plaintiffs-Appellants, v. FRATERNAL ORDER OF EAGLES, Fraternal Order of Eagles Grand Aerie, and John Doe, in His Individual and Official Capacity as a Member of the Fraternal Order of Eagles and International Fraternal Order of Eagles, Defendants-Appellees. No. 89-3272. United States Court of Appeals, Sixth Circuit. Argued Nov. 13, 1989. Decided Oct. 1, 1990. Edward L. Gilbert, argued, Akron, Ohio, for plaintiffs-appellants. Kevin T. Lyden, James L. Bickett, argued, Joondeph & Shaffer, Akron, Mell G. Underwood, Jr., argued, New Lexington, Ohio, for defendants-appellees. Before MERRITT, Chief Judge, KENNEDY, Circuit Judge, and McRAE, Senior District Judge. The Honorable Robert M. McRae, Senior Judge of the United States District Court for the Western District of Tennessee, sitting by designation. MERRITT, Chief Judge. Plaintiffs appeal summary judgment in favor of the defendants in this action alleging race discrimination in the refusal to form a contract, a violation of 42 U.S.C. § 1981 (1982). Plaintiffs Calley and Ivory Watson, mother and son, are black. They sued Akron Aerie Local 555 of the Fraternal Order of Eagles (hereinafter Local 555) and its parent, the International Fraternal Order of Eagles Grand Aerie (hereinafter Grand Aerie) under 42 U.S.C. § 1981 and for discrimination in public accommodations under Title II of the 1964 Civil Rights Act, 42 U.S.C. § 2000a et seq. (1982). They also appended state claims for breach of contract and intentional infliction of emotional distress. The District Court denied relief on the federal claims because it found that Title IPs private club exception, 42 U.S.C. § 2000a(e), barred any relief under any civil rights statute; it also dismissed the pendent state claims. Because we hold that § 2000a(e) does not foreclose this independent action under § 1981, we reverse the judgment of the District Court but we affirm with respect to the Grand Aerie because plaintiffs have not stated a cause of action against them under § 1981. I. BACKGROUND “At the outset, it is important to make clear precisely what this case does not involve.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968). At issue in this case is not whether the Eagles as a whole or Local 555 individually are discriminatory organizations. Whether Local 555 admits blacks as members or guests as a general rule is also not before us. Nor must we determine the extent to which the law generally permits the existence of discriminatory clubs. What is at issue in this case is solely whether the plaintiffs have alleged sufficient facts with adequate support to state a cause of action for refusal to contract under § 1981 and to survive a motion for summary judgment. Local 555 is a constituent of the Fraternal Order of Eagles. The Order is organized into local lodges called “aeries,” a word used for the mountain-top nests of hawks, eagles, and other birds. It has an overall governing body called the “Grand Aerie.” The Grand Aerie sets international policies for the Eagles and its component local aeries, but the Grand Aerie leaves membership policies and house rules up to the local aeries, according to the constitution and bylaws of the Grand Aerie. Fraternal Order of Eagles Const, art. VII, §§ 6, 8, J.A. at 223-24. The locals own their own halls. Under its stated rules, Local 555 uses a blackball system for membership: The members vote on a candidate using white or black balls, and if the candidate receives more than three black balls, he is not admitted. Local 555’s secretary testified that the Local had about 700 members at the time of the incident, that some whites had been rejected for membership, and that no blacks were members of Local 555 or had tried to become members. Deposition of Louis Trunzo at 7-8, J.A. at 167-68; Affidavit of Louis Trunzo ¶ 20, J.A. at 50. The members of Local 555 have no responsibility for club policies. Memorandum in Support of Defendants’ Motion for Protective Order, Docket No. 24. The Eagles, like other fraternal organizations, is an all-male club designed to organize social events, recreation, and charitable activities for its members, their children, and members of the “Ladies Auxiliary.” The purposes of the club itself are not specified in the record. Counsel for Local 555 said at argument on the summary judgment motions that the club served no food [e]xcept on Friday nights when they have their fish-fry. They don’t serve lunches and dinners and things like that. It’s a bar. Don’t serve coffee — just to get potted. Transcript of Motion Hearing, Docket No. 100, at 21. When the District Court asked, “What do the Eagles do besides drink liquor?” counsel responded: Socialize and ... if they have money left over they give it to charitable organization [sic] in the community. It’s just a fraternal organization, people get together and socialize and they have dances Saturday nights for the members and guests. Id. at 24. While the Eagles as an organization has existed since the close of the nineteenth century, the record reveals little more about its original purpose or present day activities. The Local 555 hall in Akron has three rooms: a banquet room, a social room, and a game room. Local 555 rents out the banquet room for private parties held by nonmembers. Affidavit of Louis Trunzo ¶ 24, J.A. at 50. The social room has a bar that serves alcoholic and nonalcoholic beverages. Local 555 permits members to bring as many guests to the hall at one time as they would like. Once a guest has visited three times, he is not permitted in the hall unless he becomes a member. According to the stated house rules, which the Watsons claim are not observed, a member must accompany any guest into the social room and purchase any alcoholic beverages for the guest; guest may purchase their own soft drinks for cash. Deposition of Louis Trunzo at 10, J.A. at 170. Local 555 has this policy to conform to the requirements of its liquor license, which limits sales of alcohol to members only. Id. In November 1987, the Watsons received an invitation to attend a party at the Local 555 hall. The guests of honor were Tom and Cheri Huskey, whom Ivory Watson had met through a youth baseball league. After winning the lottery, the Huskeys moved to California from Akron, and for Thanksgiving that year they had decided to come back to visit their old friends. Looking for a place large enough to hold all of the invited guests, one of the Huskeys’ friends, B.Y., suggested the Local 555 hall. B.Y. was a member of the Local 555 Ladies Auxiliary and could invite an unlimited number of guests to the hall. Mr. Huskey had been a member of Local 555 before he moved to California. He and his wife sent out postcards to their friends, including the Watsons. B.Y. did not limit the number or review the identity of any of the guests. On the day of the party, the Watsons went to the Local 555 hall, rang a doorbell, and were admitted by a buzzer system, apparently sight unseen. Most of the twenty-odd party guests and the Huskeys had already arrived, and the party spread between the banquet room and the social room. Despite Local 555’s stated rules to the contrary, some of the guests had purchased drinks at the bar; no one was required to prove membership in Local 555, or the Eagles, generally to buy a drink. Guests moved freely around the facility. B.Y. was working at the bar. The Watsons were the only blacks at the party. The Watsons and defendants offer very different versions of what happened next. Because the Watsons lost on summary judgment, we will accept the facts as they aver them. The Watsons claim that B.Y. approached Mrs. Huskey privately and told her that blacks were not welcome at the Local 555 hall. Mrs. Huskey started suggesting that people leave and go elsewhere. She then told her husband to talk to B.Y. Affidavit of Cheri Huskey ¶¶ 6-7, J.A. at 160. B.Y. told Mr. Huskey in a side room that the Watsons would have to go because the Eagles had a rule against blacks and the Local 555 liquor license required it to enforce all rules. B.Y. said she had talked to a Local 555 trustee and that he told her to expel the Watsons even though they were causing no problems. She also said that the bartender who was relieving her indicated that she would not serve the Wat-sons. Affidavit of Tom Huskey 117, J.A. at 156. Meanwhile, Ivory Watson had gone to the bar to purchase soft drinks for his mother and himself. Another guest, Mr. Kistler, offered to buy the drinks for Mr. Watson. Before Mr. Kistler could complete the purchase, Mr. Huskey interfered and told the guests at the bar that the party was leaving because no blacks were allowed in the Local 555 hall. Mrs. Huskey informed the other guests, and everyone in the party decided to adjourn to Guy’s Party Center, a bar down the road from the Local 555 hall. B.Y. promised the Huskeys that she would direct any late guests to Guy’s. At about 9:00 p.m., the Watsons left Guy’s. B.Y. later joined the group at Guy’s, which then decided to return to the Local 555 hall where the drinks were cheaper and the facilities better. The party continued in the game room of the Local 555 hall, where it had not been earlier. Mr. Huskey says that he went freely through the hall, bought drinks at the bar, and used the men’s restroom, all unimpeded. The Eagles were holding a dance that night for members and guests, and the Huskey party apparently joined the dance. The defendants claim that the incident began because C.H., a member of Local 555 who was sitting at the bar at the time, began to make racist comments upon seeing the Watsons. B.Y. and her coworker refused to serve him any more alcohol and told him to stop, but he did not. Fearing that the situation would become explosive, B.Y. called a trustee who told her to tell “them” to leave. Affidavit of B.Y., J.A. at 53. B.Y. told Mr. Huskey to tell the Wat-sons to leave; the offending member left soon afterwards. In response to this story, the Watsons assert that they heard no racist remarks from anyone at the bar that evening. The Watsons attempted to depose C.H. on a number of occasions, and eventually moved the District Court to order C.H. to appear and show cause why he should not be held in contempt. The District Court held this decision in abeyance because it faced several motions for summary judgment. All of the defendants moved for summary judgment individually. In a single opinion and order, the District Court dismissed all claims against all of them. First, the District Court dismissed the two federal claims against the Grand Aerie and Local 555. It found that both the Grand Aerie and Local 555 were covered by the private club exception to the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e) (1982). The District Court found that the defendants had introduced enough evidence to show that they were private clubs and that the Wat-sons did not introduce opposing evidence to create a genuine issue of material fact. Next, the District Court held that 42 U.S.C. § 1981 implicitly contained the § 2000a(e) exemption for private clubs. The court decided that § 1981 could not extend beyond the relief offered by the later and more specific Title II, and that a literal application of § 1981 to all contractual relations of private clubs would infringe on the members’ First Amendment right of free association. II. THE EFFECT OF TITLE II ON SECTION 1981 When Congress enacted the 1964 Civil Rights Act, the question arose whether it intended to affect the earlier civil rights acts then in force. The Supreme Court has answered this question several times, and has found that the limitations found in the later civil rights statutes do not impinge on actions that may be brought under earlier enactments. While the Supreme Court has specifically reserved the issue presented to us, Runyon v. McCrary, 427 U.S. 160, 172 n. 10, 96 S.Ct. 2586, 2595 n. 10, 49 L.Ed.2d 415 (1976) (private school not a private club); Tillman v. Wheaton-Haven Recrea tion Ass’n, 410 U.S. 431, 438-39, 93 S.Ct. 1090, 1094-95, 35 L.Ed.2d 403 (1973) (association clearly not private club, so Court does not decide whether immune under § 2000a(e)), the Court has repeatedly held that the later statutes did not repeal the earlier statutes. For example, in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Supreme Court specifically held that 42 U.S.C. § 1982 (1982) provides a separate remedy for housing discrimination from the Fair Housing Act, 42 U.S.C. §§ 3601-3631 (1982). Similarly, the Supreme Court has held that a § 1982 claim was not subject to the administrative requirements of the 1964 Civil Rights Act because the two acts provided for separate forms of recovery. Sullivan v. Little Hunting Park, 396 U.S. 229, 237-38, 90 S.Ct. 400, 404-05, 24 L.Ed.2d 386 (1969). The Court has also held that, under many circumstances, Title VII of the 1964 Act and § 1981 create two separate actions, are subject to different procedures, create different remedies, and that both statutes might apply to a given situation. Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 2375, 105 L.Ed.2d 132 (1989); Johnson v. Railway Express Agency, 421 U.S. 454, 461, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). Thus, although the Supreme Court has not answered the precise question before us, its other precedents indicate a clear path to us. As a general rule, later, more specific statutes limit the interpretation of earlier, more general ones. 2A N. Singer, Sutherland Statutes and Statutory Construction § 51.05, at 499 (Sands 4th ed. 1984). This principle does not apply if the legislature intended the general act to retain independent force. Id.; see also id. § 51.01, at 449 (“[OJther statutes may not be resorted to if the statute [to be interpreted] is clear and unambiguous.”). Strong evidence exists to support the proposition that Congress did not intend to vitiate other possible remedies for discrimination when it enacted Title II. First, Congress included an express “savings clause” in the statute. That section provides that “nothing in this subchapter shall preclude any individual ... from asserting any right based on any other Federal or State law not inconsistent with this subchapter ... or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right.” 42 U.S.C. § 2000a-6(b) (1982). Applying § 1981 to refusals to contract by private clubs is not inconsistent with Title II. Section 2000a(e) is merely definitional. Section 2000a(a) prohibits discrimination in “public accommodations.” As the provisions of § 2000a(b) include specific types of institutions in the set of “public accommodations,” § 2000a(e) excludes one type of institution, the private club, from that set of institutions subject to the enforcement provisions of Title II. The reason for this particular exclusion is that private clubs often resemble places of public accommodation by serving food and drink and providing entertainment for their guests. The exception does not, however, give the clubs carte blanche to violate all other antidis-crimination laws. Rather, it only exempts them from the particular provisions of Title II, e.g. suits against them by the Attorney General under 42 U.S.C. § 2000a-5(a). Thus, although Title II does not apply to all establishments, suits against noncovered establishments under other statutes are not inconsistent with Title II. A department store, for example, is not directly covered by Title II but would be amenable to suit under § 1981. Similarly, even though private schools do not fall under the provisions of Title II, a suit against them under § 1981 is not inconsistent with Title II. Runyon v. McCrary, 427 U.S. at 172 n. 10, 96 S.Ct. at 2595 n. 10. A state law prohibiting discrimination in private clubs would create a state cause of action not inconsistent with Title II. Second, Congress has also indicated its intention to preserve both statutes by not amending either one after the Supreme Court held that § 1981 applies to private discrimination in Runyon v. McCrary. Further, the legislative history considered by the Court in Runyon suggests that Congress purposely left both statutes in force. Runyon, 427 U.S. at 174 n. 11, 96 S.Ct. at 2596 n. 11 (effort to make Title VII and Equal Pay Act exclusive remedies for employment discrimination fails) (citing 112 Cong.Rec. 3371-73 (1972)). Thus, Congress expressly and implicitly contemplates the two acts existing side by side controlling in their respective areas despite the overlap between the two. This intention is revealed also in the structure and application of the two statutes. Because they are different statutes, Title II and § 1981 have different requirements for bringing a cause of action, for standing, and for obtaining relief. Under Title II, a plaintiff must pursue certain administrative remedies before suing the allegedly discriminating party. 42 U.S.C. § 2000a-3(c), (d) (1982). A plaintiff may sue under § 1981 without seeking any administrative relief. The Attorney General may sue under Title II, 42 U.S.C. § 2000a-5(a), and may request the convening of a three-judge court. 42 U.S.C. § 2000a-5(b). The Attorney General has no explicit or implicit right to sue under § 1981. See United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.1980) (no implied right of action for United States under § 1981). Finally, a plaintiff suing under the 1964 Civil Rights Act need not prove that the defendant’s actions were intentional, but a plaintiff suing under § 1981 must. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 383 n. 8, 383-91, 102 S.Ct. 3141, 3146-50 n. 8, 73 L.Ed.2d 835 (1982). The two statutes also offer different remedies. Title II only permits the issuance of an injunction and declaratory relief. Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam); 42 U.S.C. § 2000a-3(a) (1982). Section 1981 permits a plaintiff to seek compensatory and punitive damages as well as injunctive and declaratory relief. Johnson v. Railway Express Agency, 421 U.S. at 460, 95 S.Ct. at 1720 (“An individual who establishes a cause of action under § 1981 is entitled to both equitable and legal relief, including compensatory and, under certain circumstances, punitive damages.”). Finally, the respective constitutional bases for each of the two statutes differ. Congress enacted § 1981 pursuant to the Thirteenth Amendment. Runyon v. McCrary, 427 U.S. at 168-74, 96 S.Ct. at 2593-96; see also Jones v. Alfred H. Mayer Co., 392 U.S. at 422-37, 88 S.Ct. at 2194-2202 (reviewing history of 1866 Civil Rights Act with respect to § 1982); Farber, Statutory Interpretation, Legislative Inaction, and Civil Rights, 87 Mich.L.Rev. 2, 4-7 (1988) (reviewing 1874 recodification of § 1981); Sullivan, Historical Reconstruction, Reconstruction History, and the Proper Scope of Section 1981, 99 Yale L.J. 541 (1989) (reviewing history of Civil Rights Act of 1866). Under its power to eradicate involuntary servitude throughout the nation, Congress passed this law to ensure that all of the badges and incidents of slavery likewise faded into an ignominious past. The Civil Rights Cases, 109 U.S. 3, 21, 3 S.Ct. 18, 28, 27 L.Ed. 835 (1883) (“Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents_”). Congress designed the Civil Rights Act of 1866 to ensure “that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white_” Jones, 392 U.S. at 409, 88 S.Ct. at 2187-88. The 1964 Civil Rights Act, although similarly intended to eradicate forms of discrimination, came from a different congressional power, namely the power to regulate commerce among the several states. U.S. Const, art. I, § 8, cl. 3. Despite the fact that it believed it could enact the law pursuant to the powers in the Fourteenth Amendment, Congress instead chose to approach the problem of race discrimination through regulating commerce. S.Rep. No. 872, 88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.Code Cong. & Admin.News 2355, 2366-68. Its determination to exclude private clubs from coverage reflects, therefore, a determination that such clubs did not have a sufficient impact on interstate commerce to warrant regulation under the Commerce Clause. That conclusion does not imply, however, that the regulation of contracts made by private clubs exceeds Congress’s power from all provisions of the Constitution. Our conclusion in NAACP v. Detroit Police Officers Association, 900 F.2d 903 (6th Cir.1990), is not to the contrary. There, the Court applied the bona fide seniority plan exception in § 703(h) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2(h) (1982), to a § 1981 action. The Court noted, however, that the § 703(h) exception would not apply in cases of intentional discrimination. Id. at 908. In the case now before us, the plaintiffs have alleged sufficient facts to survive summary judgment because the facts they allege support a finding of intentional discrimination by Local 555. We therefore hold that plaintiffs can maintain a cause of action under § 1981 for refusal to contract without regard to the private club exemption of Title II. The plaintiffs do not seek to become members of Local 555. They seek relief because Local 555 refused on the basis of race to a make contract to serve them beverages. Because we determine that Title II does not affect the application of § 1981 to the making of contracts with private clubs, we need not reach the question of whether Local 555 or the Grand Aerie are private clubs for purposes of § 2000a(e). We also need not reach the merits of plaintiffs’ action under Title II because it appears that plaintiffs have not exhausted their administrative remedies as required by Title II. Section 2000a-3(c) requires that plaintiffs refer their complaint to a state agency for resolution before proceeding in federal court. The state must have a chance to resolve the dispute if it has a law on the subject. Hornick v. Noyes, 708 F.2d 321 (7th Cir.1983), cert. denied, 465 U.S. 1031, 104 S.Ct. 1295, 79 L.Ed.2d 696 (1984); Harris v. Ericson, 457 F.2d 765, 766 (10th Cir.1972); see also Hallstrom v. Tillamook County, — U.S. -, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (sixty-day waiting period under Resource Conservation and Recovery Act of 1976 mandatory and district court should dismiss complaint and not hold case in abeyance); cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (sixty-day requirement under Age Discrimination in Employment Act permits district court to hold complaint in abeyance pending outcome of state proceedings). Ohio has a law establishing a Civil Rights Commission designed to hear these kinds of disputes. Ohio Rev.Code Ann. § 4112.02(G) (Baldwin Supp.1989) (prohibiting discrimination in public accommodations); Ohio Rev.Code Ann. § 4112.05 (Baldwin Supp.1989) (dispute resolution performed by Ohio Civil Rights Commission). Plaintiffs have not demonstrated that they notified the Ohio Civil Rights Commission before filing suit as required by 42 U.S.C. § 2000a-3(c), but only notified the state agency after their suit was pending before the District Court. We therefore remand the case to the District Court to determine whether this meets the requirements of § 2000a-3(c). In addition, Title II entitles successful plaintiffs to injunctive relief only. Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam). It is unclear whether plaintiffs are entitled to injunctive relief in this case. They have not demanded membership in Local 555 or its Ladies Auxiliary, nor have they demonstrated that it is likely that they intend to become guests of Local 555 in the future. They might not have standing to bring this suit. On remand, the District Court should determine in the first instance whether the plaintiffs have met the state agency notification requirements and after the court determines whether the plaintiffs have standing to pursue the injunctive relief they seek, the plaintiffs are free to seek review of their Title II claims. Should the Watsons fail to demonstrate their compliance with the Title II filing requirements, the District Court should dismiss the Title II portion of their complaint. III. THE SECTION 1981 ACTION Section 1981 provides that All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens.... 42 U.S.C. § 1981 (1982). The plaintiffs’ allegations must be evaluated according to the standards for § 1981 cases developed in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). The Court held in Patterson that an employee could not sue under § 1981 for racial harassment on the job. The Court held that § 1981 applied only to the formation and enforcement of contracts; it did not apply to breaches of contracts. The Court focused on the language “make and enforce contracts,” and held that the facts of racial harassment only amounted to a claim for breach of contract. Defendant’s conduct did not prevent Ms. Patterson from making a contract, i.e., securing employment with the credit union. She could not show that the terms of her employment contract were dictated by her race or that she was forced to accept racial harassment in order to secure the job. The Court also held that Ms. Patterson could not show that racial harassment prevented her from enforcing that contract in the event of breach because she could still turn either to state or to other federal remedies for relief after the breach occurred. In short, the Patterson case forces the Watsons to show that they attempted to form a contract and could not do so because of their race. The only contract raised in these facts is Mr. Watson’s attempt to purchase two soft drinks from Local 555 as a guest. The club in the deposition of its Secretary, Louis Tranzo, admits that guests were permitted to buy soft drinks which was all the Watsons wanted to buy. Local 555 asked Ivory Watson to leave the club to avoid having to contract with him. This act constitutes a violation of § 1981 because, on the facts alleged, no white guests were removed from the club in order to prevent them from purchasing soft drinks. Thus the Watsons were denied the “same right to make contracts ... as is enjoyed by white citizens.” The fact that the Watsons were never refused service in this case is not controlling. If they were asked to leave in order to prevent them from purchasing soft drinks (it is undisputed that guests could purchase soft drinks and the Watsons intended only to purchase soft drinks), requesting them to leave in order to prevent them from purchasing soft drinks could be found to be merely the method used to refuse to contract. Were it otherwise, commercial establishments could avoid liability merely by refusing minorities entrance to the establishment before they had the chance to order. Even though we find that § 1981 applies here, the Eagles argue that it is exempt from the coverage of § 1981 because of its First Amendment interest in associational freedom. The Supreme Court, however, has accorded little protection to groups like the Eagle under the First Amendment. In Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), the Court distinguished two types of organizations that receive First Amendment protection. The first type consists of groups that are intimate and family-like. These groups have “a high degree of selectivity in decisions to begin and maintain the affiliation,” id. at 620, 104 S.Ct. at 3250, have little business done within the association, and have ties similar to the intimate bonds of familial relations. The second type of group is the political association. These groups have a shared political goal that is fairly well-defined. Id. at 618, 104 S.Ct. at 3249. The Court held that the Jaycees did not fit into either category. The Court later held that other groups would not receive constitutional protection. New York State Club Ass’n v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (facial challenge to city ordinance prohibiting discrimination in clubs with over 400 members that provide regular meal or other services to members fails); Board of Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987) (California antidiscrimination law applies to all-male international club of 907,750 members that attempted to expel local club that admitted women because proceedings and club halls open to visitors, and club constantly sought members despite limit on types of members). All three of these cases involved the application of state laws to allegedly private clubs. None of those laws were constitutionally infirm. From what the record reveals about the Eagles, it does not fit into either one of the categories for constitutional protection. While the constitution of the Grand Aerie mentions rituals and ritualistic objects, the main activity of the club does not seem to be performing those rituals. They are never elaborated in the record. Similarly, while the Eagles, like many such groups, may have secret handshakes and special signals to each other, these do not rise to the level of intimate associations protected under the First Amendment. Indeed, counsel for Local 555 suggested that one purpose of the members was “just to get potted.” The group is a private drinking club with some recreational activities that runs its cash bar and banquet hall as a quasi-business ventures. Similarly, the Eagles has no political purpose that would require First Amendment protection. It seems to be simply a drinking club. As such, the application of § 1981 to its conduct does not violate the freedom to associate. IV. THE LIABILITY OF THE GRAND AERIE In addition to suing Local 555, the Watsons have sued the Grand Aerie under 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 42? Answer with a number. Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. TRICO PRODUCTS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 29, 30, Dockets 72-1391, 73-1181. United States Court of Appeals, Second Circuit. Argued Oct. 12, 1973. Decided Nov. 23, 1973. Frank G. Raichle, Buffalo, N. Y. (Raichle, Banning, Weiss & Halpern and Ralph L. Halpern, Buffalo, N. Y., of counsel), for petitioner. Warren Ogden, N. L. R. B. (Peter G. Nash, Gen. Counsel; John S. Irving, Deputy Gen. Counsel; Patrick Hardin, Associate Gen. Counsel; Elliott Moore, Acting Asst. Gen. Counsel; William F. Wachter, and Richard A. Cohen, N. L. R. B., of counsel), for respondent. Before FRIENDLY, ANDERSON and MANSFIELD, Circuit Judges. FRIENDLY, Circuit Judge: What began as a rather minor incident in the research engineering and metallurgy departments of Trico Products Corporation (Trico) has subsequently developed into a vigorously contested dispute before the National Labor Relations Board and has finally led to a Board order imposing substantial back pay' liability on the company. The escalation of this teapot-sized tempest into a serious legal struggle is attributable to a combination of inept handling by lower and middle management and the Board’s unwarranted modifications of the basically sensible recommendations of the Administrative Law Judge. I. Trieo’s business is the manufacture and sale of automotive windshield wipers and other automotive products. Starting at the end of 1969, the company began to suffer a progressive decline in business due in part to a reduction in the number of automobiles produced and in part to the phasing out of other automotive products. Trico had responded with significant reductions in hourly-paid personnel. On May 14, 1970, J. W. Frey, its Vice President for Finance, circulated a directive to all foremen and department heads on the subject of salaried personnel. Frey’s memorandum referred to the gloomy business outlook and urged careful review of operations and efforts at cost reduction, “particularly through reduced overtime and elimination of non-eritical work and/or personnel.” He promised that “In the event we are advised of personnel not critically needed in any department, we will attempt to reassign the employees.” This led to a limited reduction in salaried employees. On September 15 a heavy blow fell in the form of a nationwide strike at General Motors, which was one of Trico’s most important customers. This led to the immediate layoff of-another 139 hourly paid employees, bringing the total number down to about 2080 from approximately 3000 at the beginning of 1969. Among the salaried employees were twelve technicians in Department 54 (Research Engineering), headed by Allan McIntyre, and eight in Department 88 (Metallurgical), directly headed by Michael Tutko although under the general supervision of McIntyre, who reported to Raymond Deibel, Vice President of Engineering. McIntyre and Tutko had been resisting cuts in their departments, arguing that the men had been highly trained at Trico’s expense and would be needed when the existing adversities were overcome. It was in this setting that the incident occurred which precipitated the unfair labor practice charge. The employees had long been displeased over a requirement that they submit “Project Logs” detailing what they had done each day and how much time they had spent on each assignment. Trico was later to explain, evidently to the employees’ satisfaction, that these reports were needed for patent protection, but apparently there had been a failure of communication on this score. On October 16, with what on the most charitable view must be considered a classic example of bad timing, three Department 54 employees, Vastóla, Clark and Soponski, decided the moment had arrived to bring matters to a head. On the following Monday, October 19, Vastóla prepared a petition, which we reproduce in the margin. This was signed by all the employees in the two departments, and placed in the inter-office mail on October 20. When he learned of the petition, McIntyre called Vastóla into his office and inquired about it. After Vastóla had outlined the contents and purpose of the petition, McIntyre expressed the hope that the petition wasn’t “worded too strongly because something like this could be taken two ways. Mr. Deibel could look at this and recognize the fellows have a problem and have a complaint or he could hit the ceiling.” When Vastóla responded that the petition was indeed strongly worded, McIntyre suggested that it be held off until he could talk with Deibel when the latter returned from vacation rather than “hit him with a petition when he walks in the door.” Later in the morning McIntyre summoned Clark, Soponski and McTigue, a metallurgical technician, into his office. The conversation was similar to that with Vastóla and ended with McIntyre’s suggesting that the three talk to other employees with a view to holding up the petition. Still later in the day McIntyre had all the available Department 54 and 88 employees come into his office. He reiterated his request that they hold off and give him a chance to talk to Deibel, since submission of such a petition at the particular time could have an adverse effect on wage increases and “just eould make someone mad.” Despite McIntyre’s efforts, the employees held a meeting and decided to go ahead. The next morning McIntyre, who apparently had learned of the decision, allegedly told Soponski that he “had been too good to the guys” and that if they were “going to step on his toes,” he was “going to change his ways.” McIntyre called another general meeting that afternoon, which was largely a rehash of what had gone before. After the meeting, Tutko called an employee who had not been present to urge him not to support sending the petition; Tutko stated that the petition might cause repercussions and that it would not be wise to send it at the time because of the raise evaluations scheduled for November. Later in the week Tutko asked employee Sparks how he could “be so stupid” as to sign the petition and added, “Do you realize what is going to happen next week when Mr. Deibel gets back?” On October 27, his first day back at the plant, Deibel called a meeting of the employees of the two departments. He said he first wished to discuss the petition but had some bad news to announce afterwards. He expressed disapproval of the petition which, in his view, made it look to management as if the engineering departments could not solve their own problems; he added that he particularly disliked use of the word “demand.” Deibel then explained the purpose of the logs to the satisfaction of the employees. Turning to the “bad news,” he referred to the continuing General Motors strike and the possibility of one at Ford. Because of Trico’s poor economic condition, there would have to be a layoff or, as he preferred to call it, a furlough, effective on October 30. He read the names of eight employees to be laid off; these, chosen in inverse order of seniority, included the three originators of the petition. Each laid-off employee was given a letter stating that his employment had been terminated “because of a reduction in personnel, based on seniority, caused by business conditions.” The letter summarized what the employee’s duties had been and stated that it was “a pleasure” to recommend him for suitable employment. At the unfair labor practice hearing, Deibel asserted that the layoffs were not caused by the petition. He said that before he went on his vacation Frey had appealed to him “to continue an effort to keep our non-productive overhead down.” Deibel testified that he had met with his subordinates on several occasions during the summer and fall to discuss the problem of excess manpower in various departments. In mid-October, McIntyre, Tutko, and R. A. Batt, Dei-bel’s assistant, held a meeting in which Batt told the department heads that they would have to give serious consideration to implementing layoffs. Deibel claimed that he had finally decided on a layoff during the last weekend of his Caribbean cruise and had telephoned the decision to Batt on the morning that he returned. During their conversation, Batt asked Deibel whether he had seen the petition. When Deibel said he had not, Batt suggested that he look through his mail. Upon finding the petition, Deibel said he was disappointed, and arranged to meet with Batt, McIntyre and Tutko. At the meeting, he allegedly assured them that the petition did not bother him but that economic conditions required a layoff in the production research area. McIntyre and Batt said they had done some work on this but would like more time. Deibel told them to prepare a list of employees they would consider cutting, and repeated that he could easily straighten out the employees about the logs. At a second meeting later that morning, Tutko agreed to the layoff of two of his employees and McIntyre agreed to give up four. Deibel subsequently decided to lay off a total of eight. Deibel’s bland account of the sequence of events and his own motivations was somewhat discredited by employee testimony concerning post-layoff statements by Tutko, most of which he conceded to be truthful. McTigue reported that Tutko had told him, “They think they’ve gotten rid of the troublemakers,” and added that he had wárned the employees not to send the petition. Tutko told another employee, “See what I told you last week would happen. Now you know.” II. On a complaint charging various violations of § 8(a)(1), the Administrative Law Judge found that Trico had coer-cively interrogated employees and threatened them with reprisals with respect to an activity protected by § 7. He declined to credit Deibel’s testimony that his decision to make the layoffs had fully matured while he was basking in the Carribbean sun and before he knew of the petition; he thought it strange, as we do, that on the morning of his return Deibel “would not first consult with Frey, or other Company officials, before so hastily laying off these experienced employees.” On the other hand, with equal good sense, he found that “even absent such [protected] activity, the employees laid off on October 30, 1970 ultimately would have been laid off at some future date due to economic conditions and Respondent’s overall program to reduce non-productive work.” In addition to the facts already related, he deemed it “particularly significant that none of the laid off employees were replaced by the hiring of any new employees,” since this “clearly demonstrates that Respondent was able to continue the operation of its business with this lesser number of employees.” He therefore declined to order reinstatement (although he directed that the names of the laid-off employees be placed on a preferential hiring list) and limited the amount of back pay, which was to be determined in a compliance proceeding, to the amount the laid-off employees “would have earned from the date of discrimination to the date they would have been normally laid off, absent the discrimination, less net earnings during said period.” On the other hand, he included in his recommendations a “broad order” directing Trico to cease and desist from “[i]n any other manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act.” Both Trico and the UAW, the charging party, excepted to the Administrative Law Judge’s decision although the General Counsel did not. The Board adopted most of the findings of the Administrative Law Judge but disapproved his decision in one important respect, namely, his conclusion that the petition merely accelerated a layoff which in any event would have occurred relatively soon. It concluded that Trico had apparently believed that because salaried technical personnel were difficult to replace, they should not be laid off no matter what the company’s economic condition. The Board further found that “although the question of taking layoff action was debated and was discussed by Deibel with his department heads on a number of occasions following Frey’s directive, all had commonly agreed that all their employees should be retained.” Since Trico had presented no evidence of contemporaneous layoffs in other departments, the Board perceived “no relevance in the fact that the eight employees named in the complaint were not replaced.” Accordingly, it directed that Trico offer the employees reinstatement to their former jobs or, if these no longer exist, to substantially equivalent positions and that the company make the employees whole for any loss of earnings, apparently until the end of time. III. We shall consider in the first instance the conclusions with respect to coercive interrogation and threats. Trico contends with some persuasiveness that McIntyre and Tutko were endeavoring to help the employees, not interfering with, restraining, or coercing them in the exercise of their undoubted right to protest about working conditions. According to the company, McIntyre and Tutko were merely trying to dissuade the employees from taking action which had little chance of accomplishing anything and might suggest to management that the men were reluctant to report what work they were doing because they had very little to do. We sustain Trico’s position with respect to the interrogation. Neither the Administrative Law Judge nor the Board made any attempt to analyze this in light of the five standards which we announced in Bourne v. NLRB, 332 F.2d 47, 48 (2 Cir. 1964), and have applied in cases too numerous for citation. The interrogation here failed to meet at least four of the five. Trico had no history of hostility to concerted activities or anti-union discrimination; the interrogation was not directed at obtaining information on which to base action against individual employees; the questioner was not high in the company’s hierarchy; and the replies were truthful. Even as to the remaining criterion, whether the employee was “called from work to the boss’s office” and there was “an atmosphere of ‘unnatural formality’,” the second branch was not met. We must reach a different conclusion with respect to the alleged threats. If we were sitting as triers of fact, we might well agree with Trico that in view of all the circumstances, McIntyre and Tutko were endeavoring to dissuade rather than to intimidate. However, the requirement that we sustain findings “with respect to questions of fact if supported by substantial evidence on the record considered as a whole,” 29 U.S.C. § 160(e) and (f), applies to inferences as well as to findings of evidentiary facts. Radio Officers’ Union v. NLRB, 347 U.S. 17, 48-52, 55-56, 74 S.Ct. 323, 98 L.Ed. 455 (concurring opinion of Mr. Justice Frankfurter) (1954). During otherwise informal and candid exchanges of views, the supervisors’ threats of wage reevaluation, especially in light of Deibel’s subsequent precipitous action, supplied a sufficient basis for the conclusion that the petitioners were coerced in violation of § 8(a)(1). We likewise sustain the finding that the petition was a cause of the employees being laid off when they were. To be sure, Deibel testified that he was not disturbed by the petition and evidently succeeded in persuading the employees that their protest was ill-founded. Yet the Board was not bound to credit his claim that it was a mere coincidence that he ordered the layoffs within a few hours of his receipt of the petition, and at the same meeting at which he mildly rebuked the employees for sending it. See NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 713 (2 Cir. 1969); United Aircraft Corp. v. NLRB, 440 F.2d 85, 91-92 (2 Cir. 1971). The case would indeed stand differently if Deibel had limited the October 27 meeting to answering the petition, had thereafter discussed the layoff problem with Frey or other members of top management who were unaware of the petition or were demonstrably unaffected by it, and had then done exactly what he did here. The exercise of employee rights protected by § 7 cannot forever disable an employer from taking action deemed appropriate in light of economic needs. But if an officer with power to fire has too low a flash point, the company must bear the consequences. We take a different view with respect to the reversal of the findings of the Administrative Law Judge that an early layoff was in the cards in any event. Although “[t]he ‘substantial evidence’ standard is not modified in any way when the Board and its examiner disagree,” nevertheless “evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We have frequently applied this principle. See NLRB v. James Thompson & Co., 208 F.2d 743, 745-746 (2 Cir. 1953); NLRB v. Park-Edge Sheridan Meats, Inc., 341 F.2d 725, 728-729 (2 Cir. 1965); NLRB v. River Togs, Inc., 382 F.2d 198, 203-204 (2 Cir. 1967). In this case the evidence supporting the Board’s conclusion that the eight employees would not have been shortly laid off but for the petition is not substantial “on the record considered as a whole,” even if the Administrative Law Judge’s decision is not taken into account. To anyone having ordinary business sense it would be obvious that a company which had been obliged to cut its production employees by a third and was threatened with the possibility of having to cut by more was not going to maintain its research departments at full strength indefinitely, at least in the absence of evidence that they were engaged in projects vital to the future success of the company. The evidence is wholly consistent with this view. The Board attempted to minimize the force of Frey’s directive of May 14, 1970, by saying that Frey offered to transfer unneeded salaried employees “if possible.” This ignores the deterioration between May 14 and October 30, including the General Motors strike, which continued until November 12, and the attendant layoff of another 139 production employees, as well as the prospect of further deterioration in the future. To be sure, McIntyre and Tutko were fighting to keep their organizations intact, as department heads normally do, but it is uncontradicted that in mid-October Batt told them “Look, let’s be serious about this. We have to really consider laying people off.” In the face of this and other testimony we have recited, the Board’s finding that “although the question of taking layoff action was debated and was discussed by Deibel with his departmental heads on a number of occasions following Frey’s directive, all had commonly9 agreed that all their employees should be retained,” lacks substantial evidentiary support. We likewise fail to comprehend why the fact that the layoffs of October 30 were largely confined to Departments 54 and 88 deprives of relevance “the fact that the eight employees named in the complaint were not replaced.” What the Board seems to be saying is that Trico was so intent on punishing the eight men for making a protest which the company easily satisfied them to have been unwarranted that it was willing to forego for years services needed for the effective conduct of its business. This passes understanding. The Administrative Law Judge was far more convincing in finding that the unfair labor practice merely accelerated the layoffs. The situation is the one, familiar in other contexts, “where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct;” in such instance the damages should be apportioned as between the tortious and the innocent conduct. Restatement of Torts 2d § 433A at 437. We shall therefore strike the portion of the order mandating reinstatement and restore the. direction of the Administrative Law Judge that the names of the laid-off employees be placed on a preferential hiring list. We shall also eliminate the Board’s provision for back pay and restore that of the Administrative Law Judge. While compliance proceedings will be necessary to determine the amount of back pay, these are not to be used to circumvent our decision that the petition merely accelerated a layoff that would shortly have occurred. The issue in the compliance proceeding is not whether but when. Trico may offer additional evidence as to what the men in the two departments had been doing in the months preceding the layoffs, what the anticipated future work load was, how much this could and probably would be trimmed or postponed in light of economic circumstances, and- how the work has been handled with the decreased force. The General Counsel, in turn, may inquire what was done in other departments and, if there was a difference, why. We mention these lines of inquiry as illustrative and not by way of limitation. The Board shall then determine on the basis of all relevant evidence the earliest date or dates when the employees would have been laid off in the absence of the petition — unless the parties should find it in their best interest to reach some agreement on this score. Finally, we see no justification for the “broad order” recommended in paragraph 1(c) of the decision of the Administrative Law Judge. He offered none except a conclusory reference to “the nature and extent of the unfair labor practices herein found.” As explained in Fremont Newspapers, Inc. v. NLRB, 436 F.2d 665, 674-675 (8 Cir. 1970), the phrase “in any other manner” here used is quite different from an order restraining an employer found to have committed § 8(a)(1) violations from engaging in “other like or related acts,” as sanctioned in NLRB v. Express Publishing Co., 312 U.S. 426, 437, 61 S. Ct. 693, 85 L.Ed. 930 (1941). The instant order would convert any future § 8(a)(1) charge against Trico, however unrelated to the conduct here at issue, into a contempt proceeding. Such orders should be reserved for egregious cases, of which this surely is not one. Accordingly, we shall eliminate paragraph 1(c) from the Administrative Law Judge’s order, as adopted by the Board; paragraphs (a) and (b) afford all the protection needed and warranted. The petitions to review and to enforce are respectively granted and denied to the extent indicated. Settle order on ten days notice. No costs. . Trico suggests that the timing was not accidental since tiie employees feared that further logs would show they lacked sufficient work. However, the Board did not draw that inference or the still more cynical one that the incident might have been staged at this particular time for the very purpose of causing Trico to overreact. . TO: Mr. A.E. McIntyre October 19, 1970 Mr. M.J. Tutko We, the undersigned, strongly protest the use of “Weekly Project Logs” in departments # 54 and # 88. We feel that the use of “Daily Project Logs” is a discriminatory labor practice in that the use of such “Project Logs” is not a requirement of all Technical Departments. Since the use of any discriminatory practice is prohibited by Federal Law, we demand the immediate end of the use of “Daily Project Logs.” If this situation is not immediately remedied, the National Labor Relations Board will be asked to arbitrate, cc: F. Bresse — R. A. Deibel — R. A. Batt Bresse was Trico’s Chairman of Labor Relations ; Batt was Administrative Engineer and assistant to Deibel. Deibel was on vacation at the time the petition was sent and did not return until October 27. . That the eight employees were “laid of£,” not discharged, is confirmed by their receipt of supplemental unemployment payments from Trico and Blue Cross-Blue Shield protection which is not accorded to discharged employees, and by the recall, following settlement of the General Motors strike, of the two technicians with the highest seniority. . Although the company has apparently not hired to fill the vacancies, the Board decision noted that two of the eight employees (one of them a sponsor of the petition) were reinstated in March and April, 1971. We were advised at argument that none of the others had been rehired or replaced. . The UAW, which had been seeking to represent Trico employees, got into the proceeding at an early stage. The union first charged that the eight technicians had been laid off because of union organizational activities. Discovering that it would not be able to prevail on that point, the union amended the charge to allege that the company had interfered with, restrained and coerced the employees for engaging in protected activities, namely, signing and circulating the project log petition. . The Board asserted that besides the eight employees from departments 54 and 88, Trico “laid off none of its salaried technical personnel after March 1970.” However, Frank Breese, the head of the company’s labor relations department, testified that a number or salaried personnel, including employees in tne technical departments, were laid off during 1970. Company records introduced at the hearing indicated that at least 22 salaried employees were laid off between March and the end of October, 1970. . In Bourne we held that the five standards only applied to interrogation that was “not itself threatening.” 332 F.2d at 48. McIntyre’s October 20 inquiries were much more akin to innocent information-gathering than to coercive grilling. . Our fear that they may be has been enhanced by the contention of Board counsel that the change in the back pay provision was not material since, under the Board’s language, the employees are to be made whole only “for any loss of earnings they have suffered in consequence of the unlawful layoffs.” In its brief, the Board contends that it altered the Administrative Law Judge’s findings only because the claim of no available work was not properly a part of the unfair labor practice hearing, but should have been postponed until the compliance proceedings. In its opinion, however, the Board did not simply vacate the Administrative Law Judge’s finding on that account, but considered the question of available work on the merits and strongly implied a decision that the layoffs would not ultimately have occurred for economic reasons. In NLRB v. Dazzo Products, Inc., 358 F.2d 136 (2 Cir. 1986), cited by Board counsel, there was no reason to think the employer’s contentions with respect to limitations on back pay would not be fairly considered in the compliance proceedings. Here, in view of the Board’s decision, there is every reason to think the company’s contention might be deemed foreclosed if we do not direct otherwise. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_appel1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). UNITED STATES of America, Plaintiff-Appellee, v. Charles L. ECKFORD, Defendant-Appellant. No. 89-4862. United States Court of Appeals, Fifth Circuit. Aug. 20, 1990. Rehearing and Rehearing En Banc Denied Sept. 20, 1990. Faltón 0. Mason, Jr., Oxford, Miss. (Court-appointed), for defendant-appellant. John R. Hailman, Asst. U.S. Atty., Robert Q. Whitwell, U.S. Atty., Oxford, Miss., for plaintiff-appellee. Before THORNBERRY, JOHNSON and SMITH, Circuit Judges. JOHNSON, Circuit Judge: Appellant Charles L. Eckford (“Eck-ford”) entered a plea of- guilty to a charge of attempted bank robbery. In computing Eckford’s sentence under the Sentencing Guidelines, the district court considered two prior municipal court misdemeanor convictions. In both situations, relevant penal code provisions authorized a maximum penalty of not more than six months’ imprisonment. Eckford pleaded guilty to the misdemeanor charges without the assistance of counsel, but was- not incarcerated. Nonetheless, the district court’s application of these misdemeanor convictions increased Eckford’s maximum potential sentence for the subsequent attempted robbery from thirty-seven months to forty-one months. After Eckford received the maximum forty-one month sentence, he appealed. Because this Court is bound by prior Circuit precedent, we affirm the sentence imposed by the district court. I. FACTS AND PROCEDURAL HISTORY On January 11, 1988, appellant Charles L. Eckford entered the Blue Mountain Branch of the First National Bank of New Albany, Mississippi. Wearing a homemade mask and concealing a loaded shotgun under his clothing, Eckford attempted to rob the bank of an undisclosed amount of cash. Eckford’s attempt, however, was unsuccessful. He was taken into custody and indicted for the attempted robbery of a federally insured bank and • the unlawful possession of a firearm during the attempt. Pursuant to a plea agreement, the Government dropped the firearm charge and Eckford entered a guilty plea to the charge of attempted bank robbery. The United States Probation Office began an investigation of Eckford’s criminal history, which it recorded in Eckford’s presentence report. The report, to which Eckford strenuously objected, detailed two municipal court misdemeanor convictions that Eckford received in the mid-1980s. One of these convictions represented the violation of a Mississippi Code provision proscribing the operation of a motor vehicle while under the influence of intoxicating liquor. The other conviction represented the violation of a Mississippi Code shoplifting prohibition. On the basis of these misdemeanor convictions, the presentence report recommended a total of two criminal history points, which increased Eckford’s criminal history category to Level II under the Federal Sentencing Guidelines. Eckford complained that the presentence report improperly considered these prior misdemeanor convictions. On both the driving under intoxication charge and the shoplifting charge, Eckford was not afforded counsel and did not knowingly waive the right to counsel. Although the Mississippi Code provisions on these offenses permit up to — but not more than — six months’ imprisonment, the municipal judge only required Eckford to pay minimal fines. While conceding the validity of these un-counseled misdemeanor convictions, Eck-ford argued that the convictions could not be used to support sentence enhancement under the Sentencing Guidelines. The district court, however, denied Eck-ford’s objection to the criminal history category calculated in the presentence report. Concluding that the presentence report properly calculated Eckford’s criminal history category at Level II, the district court imposed the maximum potential sentence of forty-one months’ imprisonment. This sentence was four months longer than the maximum sentence that would have been permissible if the prior uncounseled misdemeanor convictions had not affected Eck-ford’s criminal history. II. DISCUSSION The sixth amendment guarantee of counsel is one of the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932). A criminal defendant prosecuted without the assistance of counsel lacks the skill and knowledge necessary to prepare an adequate defense. “Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.” Id. at 69, 53 S.Ct. at 64. The sixth amendment therefore “stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ‘still be done.’ ” Johnson v. Zerbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). Of necessity, however, the sixth amendment does not ensure an unlimited right to counsel in all criminal cases. If a criminal defendant were guaranteed counsel in comparatively insignificant criminal prosecutions that did not pose the possibility of imprisonment, the already overburdened criminal justice system would face crippling costs, congestion and confusion. Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). To draw the line between the competing concerns of fairness to the defendant and convenience to the Government, the Supreme Court has determined that the sixth amendment requires only that “no indigent criminal defendant be sentenced to a term of imprisonment” unless the Government has afforded him the right to assistance of counsel. Id. at 374, 99 S.Ct. at 1162 (emphasis added). Thus, conviction of an uncounseled criminal defendant is constitutionally permissible, so long as the defendant is not sentenced to a term of imprisonment. If an uncounseled defendant is sentenced to prison, the conviction itself is unconstitutional. Eckford argues that because his pri- or uncounseled misdemeanor convictions could not be used directly to impose a prison term, then logically they should not have been used indirectly to impose an increased prison term under the Sentencing Guidelines. He maintains that even if actual imprisonment determines the constitutional right to appointment of counsel, pri- or uneounseled misdemeanor convictions may not be used collaterally to impose an increased term of imprisonment on a subsequent conviction. For this argument, Eckford relies extensively upon the concurring opinion of Justice Marshall in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). In Baldasar, the defendant was charged with theft after he pilfered a twenty-nine dollar shower head from a department store. At trial over the defendant’s objection, the prosecutor introduced evidence establishing an earlier misdemeanor conviction for theft. This prior conviction, for which the defendant received a fine and probation even though he was not represented by counsel, enhanced the potential punishment for the subsequent offense from a misdemeanor (punishable by a fine and imprisonment for up to a year) to a felony. The defendant was convicted of a felony and sentenced to prison for one to three years. In a brief per curiam opinion, the Supreme Court reversed the defendant’s conviction. The per curiam opinion contained no discussion of the relevant sixth amendment principles, relying instead on the analysis expressed in three concurring opinions. The most expansive of these concurrences was authored by Justice Marshall, who concluded that under no circumstances could a prior uncounseled misdemeanor conviction be used collaterally to impose an increased term of imprisonment on a subsequent conviction. Baldasar, 446 U.S. at 225, 100 S.Ct. at 1586 (Marshall, J., concurring). Three other Supreme Court justices — Justices Brennan, Stevens and Stewart — joined Marshall in this conclusion. Justice Blackmun’s concurrence, however, tempered the expansive reach of Justice Marshall’s concurrence. Writing separately in Baldasar, Justice Blackmun urged a “bright-line” approach that would require the appointment of counsel when an indigent defendant is charged with a nonpetty criminal offense punishable by more than six months’ imprisonment. Id. at 230, 100 S.Ct. at 1589 (Blackmun, J., concurring). Since the defendant in Balda-sar was initially prosecuted without legal representation for a misdemeanor offense punishable by more than six months’ imprisonment, Justice Blackmun believed that the defendant’s conviction was unconstitutional and therefore unavailable to support enhancement of subsequent punishment. Justice Blackmun’s concurrence was narrowly drawn, expressly limited to the particular facts of the defendant in Baldasar. Nonetheless, Justice Blackmun’s vote in favor of reversing the defendant’s conviction was essential to the slim five member majority. The inconsistency between Justice Blackmun’s narrow approach and Justice Marshall’s expansive approach has clouded the scope of the Baldasar decision. Many courts have questioned whether Baldasar expresses any persuasive authority on the collateral use of uncounseled misdemeanor convictions. See, e.g., Schindler v. Clerk of Circuit Court, 715 F.2d 341, 345 (7th Cir.1983) (“the [Baldasar] decision provides little guidance outside of the precise factual context in which it arose.”), cert. denied, 465 U.S. 1068, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984); United States v. Robles-Sandoval, 637 F.2d 692, 693 n. 1 (9th Cir.) (“The court in Baldasar divided in such a way that no rule can be said to have resulted.”), cert. denied, 451 U.S. 941, 101 S.Ct. 2025, 68 L.Ed.2d 330 (1981). Likewise, this Court has questioned the persuasive influence of Baldasar. In Wilson v. Estelle, 625 F.2d 1158 (5th Cir. Unit A 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1985, 68 L.Ed.2d 302 (1981), this Court found no error in the admission of evidence of the defendant’s two prior un-counseled misdemeanor convictions during the punishment phase of a murder trial. Relying on the conclusion in Scott v. Illinois that the sixth amendment does not require the states to afford counsel in those criminal cases in which the offender is not imprisoned, we determined that the defendant’s misdemeanor convictions, for which he received no term of imprisonment, were valid for all purposes. Id. at 1159. We acknowledged the potentially conflicting opinions of the concurring justices in Baldasar, but essentially limited Baldasar to its particular factual scenario: “a prior uneounseled misdemeanor conviction may not [be] used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term.” Id. at 1159 n. 1. Subsequent opinions of this Court have reinforced the Wilson decision. In Thompson v. Estelle, 642 F.2d 996 (5th Cir. Unit A 1981), we again concluded that “evidence of a prior uncounselled misdemeanor conviction for which no imprisonment was imposed may properly be introduced in the punishment phase of a trial.” Id. at 998. In United States v. Smith, 844 F.2d 203 (5th Cir.1988), we held that a sentencing court could consider the defendant’s numerous prior uncounseled convictions, none of which resulted in imprisonment. It is well settled that prior panel decisions of this Court may not be disturbed except on reconsideration en banc. See Hodge v. Seiler, 558 F.2d 284, 287 (5th Cir.1977); Puckett v. Commissioner, 522 F.2d 1385, 1385 (5th Cir.1975). Accordingly, in the absence of reconsideration en banc, this Court is not empowered to disturb our prior reasoned decisions that Bal-dasar v. Illinois does not preclude the use of uncounseled misdemeanor convictions during sentencing for a subsequent criminal offense. III. CONCLUSION This Court’s earlier decisions establish that the district court may consider during sentencing a criminal defendant’s prior un-counseled misdemeanor convictions for which the defendant did not receive a term of imprisonment. In the present case, we are unable to conclude that the district court erred in considering Eckford’s prior uncounseled misdemeanor convictions to determine his criminal history score under the Sentencing Guidelines. Eckford’s sentence is affirmed in all respects. AFFIRMED. . The relevant provision under which Eckford entered his guilty plea is 18 U.S.C. § 2113(a) (1982) (bank robbery and incidental crimes). . Miss.Code Ann. § 63-11-30 (1989). . Miss.Code Ann. § 97-23-45 (1989). .Each prior misdemeanor conviction that carries a fine or a term of imprisonment of less than 60 days counts as a single criminal history point. Sentencing Guideline § 4Al.l(c). Zero or one criminal history point places a defendant in criminal history category I, while two or three criminal history points places a defendant in criminal history category II. . The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. . The three concurring opinions were authored respectively by Justices Stewart, Marshall and Blackmun. Justice Stewart, whose concurrence is not particularly important for purposes of the present case, concluded that the defendant was unconstitutionally sentenced to an increased term of imprisonment “only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense." Baldasar, 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring) (emphasis in original). Essentially, Justice Stewart’s concurrence dovetailed into Justice Marshall’s expansive concurrence. Indeed, each justice joined in the other’s concurrence. . See Rudstein, The Collateral Use of Uncoun-seled Misdemeanor Convictions after Scott and Baldasar, 34 U.Fla.L.Rev. 517, 529 (1982) (“The failure of the Baldasar majority to agree upon a rationale for the result, and the unique approach taken by Justice Blackmun, whose vote was necessary for that result, leave open questions concerning the decision’s scope.”). .These expressions of doubt regarding the prec-edential value of the Baldasar opinion derive from the absence of an underlying platform of common agreement among the majority justices in Baldasar. In Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), the Supreme Court held that when no opinion in one of its decisions commands the support of the majority of the justices, the holding of the Court is the position taken by the justices who based their acquiescence in the decision on the narrowest grounds. Relying on this guideline, at least one court has determined that "the holding in Baldasar is Justice Black-mun’s rationale that an invalid uncounseled conviction cannot be used to enhance a subsequent conviction.” Santillanes v. United States Parole Comm'n, 754 F.2d 887, 889 (10th Cir.1985). However, while most courts have agreed that an invalid uncounseled conviction cannot support sentence enhancement, they have not concluded that the entirety of Justice Black-mun’s concurrence — particularly the portion that renders an uncounseled conviction incapable of supporting sentence enhancement if the conviction carries a potential term of imprisonment of greater than six months — represents the official position of the Court in Baldasar. The Marks 'narrowest grounds’ interpretation of plurality decisions comprehends a least common denominator upon which all of the justices of the majority can agree. There does not seem to be any such least common denominator among the Baldasar concurrences. See Schindler, 715 F.2d at 345 n. 5. By determining that prior opinions bind this Court, we are precluded from engaging in a fresh examination of the official position of the Supreme Court in Baldasar. Nonetheless, it is apparent in this case that Eckford’s sentence would not be unconstitutional even if Justice Blackmun’s concurrence represented the Court’s holding. Eckford was not sentenced to a term of imprisonment on the prior misdemeanor convictions, nor did he face potential imprisonment of greater than six months for either of the uncounseled convictions. . Eckford argues that Wilson, Thompson and Smith are distinguishable from the present case because they did not consider the new and complex Federal Sentencing Guidelines. However, the fact that a district court considered a prior uncounseled conviction for purposes of sentence enhancement under the Sentencing Guidelines does not implicate the sixth amendment any more than the fact that a court might have considered an uncounseled conviction outside of the Guidelines. Whether the Sentencing Guidelines apply or not, sentence enhancement based on prior criminal history may only be predicated on constitutionally valid convictions. See Application Note 6 to Sentencing Guideline § 4A1.2. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_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". Saul SANTIAGO-CORREA, et al., Plaintiffs, Appellants, v. Rafael HERNANDEZ-COLON, et al., Defendants, Appellees. No. 87-1100. United States Court of Appeals, First Circuit. Heard Oct. 8, 1987. Decided Dec. 18, 1987. Hector Gonzalez-Lopez with whom Hector Urgell-Cuebas and Pedro Miranda-Cor-rada, San Juan, P.R., were on brief, for plaintiffs, appellants. Zuleika Llovet, San Juan, P.R., with whom Saldana, Rey, Moran & Alvarado, Santurce, P.R., Hector Rivera-Cruz, Secretary of Justice, and Rafael Ortiz-Carrion, Sol. Gen., were on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges. COFFIN, Circuit Judge. Five plaintiffs, who were formerly employed at La Fortaleza, the Executive Mansion of the Governor of Puerto Rico, appeal from a judgment of the district court in favor of the defendants, the Governor and two of his administrative assistants. In their complaint, the plaintiffs claimed that the defendants, who were members of the Popular Democratic Party, wrongfully fired them due to their affiliation with the New Progressive Party in violation of the First and Fourteenth Amendments to the United States Constitution and Section I, Article II of the Constitution of the Commonwealth of Puerto Rico. They sought back pay, damages, reinstatement, and other relief pursuant to 42 U.S.C. § 1983. After a bench trial, the district court dismissed the complaint. Santiago Correa v. Hernandez Colon, 637 F.Supp. 1159 (D.P.R.1986). We affirm the district court’s judgment with regard to two plaintiffs, who worked in the Press Office at La Fortaleza, but vacate that part of the judgment dismissing the complaint of the other three, who were employed as cleaning persons. I. The parties have stipulated the essential facts. Plaintiffs Santiago Correa and Torres Lopez were formerly employed as recording technicians in the Press and Communications Office of La Fortaleza. Two others, Ramos Cruz and Castro de Leon, were former cleaning persons there. The fifth, Colon Santana, was gardener at the mansion and then served as cleaning person. All five of the plaintiffs were classified as “confidential employees” pursuant to P.R.Laws Ann. tit. 3, § 1350 (1978) and the personnel regulations of La Fortaleza. The plaintiffs were discharged from their positions by letters, essentially identical in nature, stating that, pursuant to the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit. 3, §§ 1301-1431 (1978), they were being dismissed because of considerations of confidentiality and loyalty. Santiago Correa, 637 F.Supp. at 1160-61. The case proceeded to trial on July 1, 1987. On July 6, the district court issued findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure, and entered judgment for the defendants. In its findings of fact and conclusions of law, the district court stated, “defendants’ evidence established that political party affiliation was immaterial, the dismissals being based on considerations of confidentiality and loyalty as defined in the local law and regulation.” Santiago Correa v. Hernandez Colon, 637 F.Supp. at 1161. Finding that the two groups of employees, Press Office workers and house cleaners, were “confidential,” the court concluded that “the defendants could fire them without violating the Constitution.” Id. With regard to the plaintiffs’ claims that they were fired due to their political party affiliation, the court said: The political affiliation criterion is irrelevant in the unique circumstances of this case. In any event, we cannot responsibly find on this record that the employees were fired by any of the defendants simply because of party affiliation. Probably affiliation played a part, but, in any event, confidence and loyalty, as perceived by La Fortaleza controlled the decision to dismiss the employees. Id. at 1162. As we explain below, the district court’s application of the “confidentiality” exception to liability for patronage dismissals swept too broadly with regard to the cleaning persons. The court’s application of that exception to the recording technicians, however, was proper. II. In Vazquez Rios v. Hernandez Colon, 819 F.2d 319 (1st Cir.1987), we examined the existence of a narrow exception to the imposition of liability, under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), for patronage dismissals in situations where the discharged public employees served in “confidential” positions. We recognized that “political loyalty could be deemed an appropriate requirement of the job” in situations where the public employees occupied positions of “unusually intimate propinquity relative to government leaders....” Vazquez Rios v. Hernandez Colon, 819 F.2d at 324. In discussing “the range and reach of the ‘confidential’ public employee exception,” we distinguished between “employees whose jobs intrinsically place them in a confidential position relative either to policymakers or the policy making process, and those whose jobs merely permit an incidental exposure to sensitive material that is in fact beyond the bounds of their employment.” Id. at 325. The application of these standards in this case lead to differing results for the two classes of employees involved. A. Cleaning Persons Like the instant case, Vazquez Rios involved, inter alia, the dismissal of domestic workers at La Fortaleza. There, we rejected the presumption, urged by the defendants, that in dismissing the employees, they were entitled to qualified immunity because the employees were “confidential,” and thus subject to dismissal on the basis of political affiliation. Id. at 323-26. Affirming the denial of the defendants’ motion for summary judgment with regard to the claims of those employees, we left open the possibility that the defendants might establish, at trial, that those employees, or some of them, were “within the sphere of confidentiality sufficiently to render political affiliation an appropriate criterion for their jobs.” Id. at 329. In the case at bar, the defendants argue that the evidence establishes that jobs of Ramos Cruz, Castro de Leon, and Colon Santana fell within that sphere. We disagree. The responsibilities of these plaintiffs, see supra note 2, involved general cleaning tasks in La Fortaleza; these tasks at times placed them in the office areas and living quarters of the Governor. Access to sensitive material was incidental at best. They were not “confidential” employees, like personal secretaries, whom public officials may fire because of political affiliation. See Soderbeck v. Burnett County, Wis., 752 F.2d 285, 288 (7th Cir.1985). Thus, the district court erred in concluding that the cleaning persons were “confidential” employees, whom the defendants could fire at will. It follows that the district court erred in rejecting as “immaterial” and “irrelevant” the cleaning persons’ claims that their dismissals were politically motivated. See Santiago Correa, 637 F.Supp. at 1161-62. Although the court said that “there [was] no preponderant evidence to the effect that plaintiffs were fired because of their affiliation to the New Progressive Party,” id. at 1161, we cannot accept that conclusion as a clear finding of fact in light of the court’s incorrect determination that party affiliation was immaterial. Since the district court concluded erroneously that the defendants were entitled to fire the cleaning persons because they were “confidential” employees, we remand the case to allow the district court to reconsider whether the cleaning persons proved that their dismissals were politically motivated, and if so, the remedies available. B. Press Office Employees While plaintiffs Santiago Correa and Torres Lopez steadfastly maintained that their duties were solely technical, the incumbent press officer, Velez, testified that all members of his office participated in writing press releases, editing speeches and tapes, writing letters and messages for the Governor, and advising other agencies on press matters. The recording technicians not only performed the foregoing duties, but tape recorded the Governor in hastily called sessions and sent tapes to radio stations, logged in every speech and press conference, verified the existence or non-existence of any questioned gubernatorial remark, were present at off-the-record conferences and strategy discussions, and could erase or copy any tape. The district court could and did credit this testimony. The duties so described fall within the specific domain recognized by the Court in Branti: the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. 445 U.S. at 518, 100 S.Ct. at 1295. We conclude that because the Press Office handled matters potentially subject to partisan political differences and because the positions held by Santiago Correa and Torres Lopez inherently encompassed the communication of the Governor’s official positions, political affiliation can be said to have been an appropriate requirement for effective performance. See Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir.1987); Brown v. Trench, 787 F.2d 167 (3d Cir.1986) (assistant director of public information for county subject to removal based on party affiliation); see also Vazquez Rios v. Hernandez Colon, 819 F.2d at 327 (Governor and co-defendants entitled to qualified immunity from damages for dismissal of editing assistant). Thus, the district court did not err in concluding that the defendants could fire Santiago Correa and Torres Lopez because of their political affiliations. That part of the judgment dismissing the complaints of Santiago Correa and Torres Lopez is affirmed. The remainder of the judgment dismissing the complaints of Ramos Cruz, Castro de Leon, and Colon Santana is vacated. The case is remanded to the district court for further proceedings consistent with this opinion. Half costs to appellants. . We summarize the stipulated duties of the recording technicians as follows: installing all the electronic equipment to be used in the different official activities of the Governor; recording the meetings and activities of the Governor; caring and watching for the good performance of the sound equipment; providing maintenance for the sound equipment; taking the sound equipment to the repair shop when needed; recording the sound in all the public partic-ipations of the Governor, Press Conferences, Statements, Speeches, Messages, Meetings with the press or groups, etc.; coordinating with television stations to acquire those films recorded during activities where the Governor had participated and that should be kept in Press Office files; keeping a file, duly identified and codified, of all recordings made; and performing different tasks related to the regular work of the Press Office assigned by the Secretary of that office. App. at 23-24. . The responsibilities of the cleaning persons were: cleaning the bathrooms, floors and walls of the different quarters; emptying, cleaning and washing the waste baskets; supplying bathroom paper, soap and paper towel to the different bathrooms; cleaning the furniture and accessories; cleaning and washing dishes, glassware, pots and casseroles, ovens, stoves, refrigerators, etc.; informing of [sic] defects in the equipment and tools used; keeping the area assigned clean and in order; carrying out any other related tasks assigned. App. at 22-23. .Section 1350 provides, in pertinent part: “Confidential employees are those who intervene or collaborate substantially in the formulation of the public policy, who advise directly or render direct services to the [Governor] ... [and] shall be of free selection and removal ... for good cause by provision of law." The regulations distinguish between three types of "trust” employees: a) those involved in the formulation of public policy decisions, b) those in "[d]irect services to the Governor that require a high degree of personal trust,” and c) those "whose trust nature is established by law.” Section 5.2, Personnel Regulations, Office of the Governor. . The court’s suggestion that ‘It is difficult to accept that any governor is going to feel comfortable having this type of employee around him unless there exists trust and confidence in the person,” exemplifies its misinterpretation of the "confidentiality exception” to Elrod-Branti liability. As we commented in Vazquez Rios, "[t]hat kind of analysis ... puts the cart before the horse. Political affiliation may serve as a proxy for trustworthiness in certain circumstances, but the reverse cannot be true. Lack of political affiliation (or possession of the ‘wrong’ political affiliation) cannot automatically be read to imply untrustworthiness.’’ 819 F.2d at 325. . Moreover, the court’s conclusion that "[p]rob-ably party affiliation played a part," Santiago Correa, 637 F.Supp. at 1162, renders any such finding ambiguous. . This testimony is consistent with the stipulated duties of the recording technicians, which included the performance of "different tasks related with the regular work of the Press Office assigned to [them] by the Secretary of said office.” App. at 24. 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_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. RICH v. UNITED STATES et al. No. 21, Docket 21345. United States Court of Appeals Second Circuit. Argued Oct. 13, 1949. Decided Nov. 7, 1949. John F. X. McGohey, U. S. Atty., New York City, John L. Quinlan, New York City, and Bigham, Englar, Jones & Houston, New York City, for appellant. Harry Teichner, Brooklyn, N. Y., and S. Spevack, Brooklyn, N. Y., for respondent. Before AUGUSTUS N. HAND, CHASE and FRANKS, Circuit Judges. CHASE, Circuit Judge. Rich, the appellee, was a tank cleaner employed by Pyrate Tank Cleaners, Inc. His employer was performing a contract it had made to clean the tanks of the S. S. William Crompton, a vessel owned and operated by the United States and moored at Pier 35, Brooklyn, N. Y., when on September 14, 1945 he was injured by falling from a Jacob’s ladder while working on that job. Pyrate Tank Cleaners, Inc., was an employer liable to him pursuant to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, as amended, 33 U.S.C.A. § 901 et seq., and it made payments to him as that statute required for about twenty-eight weeks. Then Rich elected to sue a third party as he might under § 33 of that statute, as amended, 33 U.S. C.A. § 933, and brought this suit against the United States as permitted by the Public Vessels Act, 46 U.S.C.A. § 781 et seq. The United States filed its answer which denied all liability and later moved to amend it and to implead, under the 56th Rule in Admiralty, 28 U.S.C.A., Pyrate Tank Cleaners, Inc., which, it then alleged, was solely at fault for negligently causing any injuries the libellant might have sustained. The libellant opposed on the grounds that he did not charge his employer with any negligence and sought no recovery from it but solely from the United States; that the latter did not allege any joint liability with Pyrate and sought no contribution from it; and that the libellant who could of right choose to sue the United States would be wrongfully prejudiced by having his right to employee’s compensation made the subject of inquiry therein. The district judge took the view that, while the 56th Admiralty Rule should be liberally construed, the petition to implead Pyrate should be denied because no joint liability with it or liability over was asserted by the United States and, because the libellant could not recover in the suit from Pyrate in view of the provisions of § 5 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 905, Pyrate “would not necessarily have an adequate motive to defend.” Thereafter the United States amended its petition to implead to allege “Ninth: That upon information and belief Pyrate Tank Cleaners, Inc., was negligent, among other things, in that its employees, without permission or authority and unknown to respondents, proceeded to and placed over the side of the William Crompton a Jacob’s ladder from which the libellant fell. That if libellant’s fall from said ladder was caused by said ladder slipping or because said ladder was insecurely or improperly tied then Pyrate Tank Cleaners, Inc., is solely responsible and liable for this accident.” “Tenth: That 'by reason of the foregoing, the petitioner has a right of liability over against Pyrate Tank Cleaners, Inc., and that therefore Pyrate Tank Cleaners, Inc., should be liable over to the United States for whatever amount, if any, may be awarded libellant against petitioner * * * ” But the petition was again denied for the same reasons as before and this appeal followed. The libellant had alleged and it was admitted by each answer to the libel that the owner of the vessel managed and controlled it. Libellant also alleged that he was injured “solely by reason of the carelessness of the respondents, their agents, servants and employees, in that they failed to furnish him with a reasonably safe place to perform his work; in that they used improper and unsafe equipment for his leaving the said vessel; in that they failed to properly examine and to take the usual and customary precautions for the use and maintenance of the equipment for him to leave the said vessel; in that they improperly adjusted, tied, fastened and placed the jacobs [sic] ladder; these negligent conditions existed for a long time prior to the happening of this accident, to the knowledge and notice of the respondents, their agents, servants and employees; * * This makes it clear that a good cause of action was alleged against the United States, regardless of whether libellant’s employer was primarily liable for his injuries, and it seems plain enough that the United States has sufficiently alleged in this petition a claim that Pyrate Tank Cleaners, Inc., “may be partly or wholly liable * * * to respondent by way of remedy over * * * growing out of the same matter * * And thus it has shown ground for relief under the express terms of the 56th Rule in Admiralty provided the Longshoremen’s and Harbor Workers’ Compensation Act, supra, does not require a different result. Section 5 of that Act, 33 U.S.C.A. § 905, provides in part that the liability of an employer under the Act “shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, * * Thus, plainly Rich could not recover from his employer in a suit brought directly against it. The question here is whether the United States, asserting that Pyrate was solely at fault, is precluded from recovering from it by virtue of that section. Cases answering this question in the negative include The Tampico, D.C.W.D.N.Y., 45 F.Supp. 174; Green v. War Shipping Administration, D.C.E.D.N.Y., 66 F.Supp. 393; and Severn v. United States, D.C.S.D.N.Y., 69 F.Supp. 21. See, however, Calvino v. Pan-Atlantic S.S. Corp., D.C.S.D.N.Y., 29 F.Supp. 1022. In Porello v. United States, 2 Cir., 153 F.2d 605, the opinion as handed down originally, supported the denial of the petition in this case at least to the extent that it said that, in the case of an employer and a third party who were joint tort-feasors, in view of § 5 supra, the latter had no right of contribution from the former. The opinion of the district judge here shows that he largely relied on that. As the opinion on the petition for rehearing in that case shows, however, this point was, in the end, left open since it was considered not necessary then to decide it: a contract of indemnity between the employer and the third party was held a sufficient basis for permitting the latter to recover against the former. Nor do we now find it necessary to decide whether the rule established in the Chattahoochee, 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801, pertaining to collision cases involving § 3 of the Harter Act, 46 U.S.C.A. §§ 190 et seq., and permitting contribution, should be followed here. It is enough for present purposes that (1) the libel states a cause of action which, if proved, would entitle the libellant to a decree against the United States whether or not it was the libellant’s employer which negligently placed over the side of the vessel the Jacob’s ladder from which libellant fell, and (2) that the petition to implead alleges that the employer was negligent in its use of the Jacob’s ladder and was solely liable if his fall was caused by its being insecurely tied. If it should turn out that the libellant’s injuries were primarily caused by the negligence of his employer in fastening the ladder insecurely for his use, the United States would have a cause of action against the employer based upon the latter’s independent duty to indemnify it for any loss sustained by the libellant’s election to sue it for injuries. It was so held in Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567, where it was decided that the New York Workmen’s Compensation Act containing almost precisely the same language as that now relied upon in the Longshoremen’s and Harbor Workers’ Act did not bar a suit for indemnity. It was there said that the third party does not sue the employer for damages “on account of” the injury to or death of the employee but for breach of an independent duty owing to the third party by the employer. 15 N.E.2d 567, 568. Perhaps it is presently of little significance, but we have already followed this New York decision in a suit under the New York Act where there was federal jurisdiction because of diversity and where also the tort proved was not joint. Burris v. American Chicle Co., 2 Cir., 120 F.2d 218, 222. At least it shows that the rule of indemnity is not exclusively one in admiralty or that of a collision situation. Since the United States, if held liable in this suit, could sue the libellant’s employer for indemnity despite the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, we can perceive no sound reason why it should not be allowed to accomplish the same result by way of impleading the employer in this action. Reversed and remanded. . He also joined as a respondent the Bar-her Asphalt Corp., -which answered the libel, but why this was done does not clearly appear from this record and, as it is not represented on this appeal, its presence as a party to the suit will be disregarded, . The pertinent part is that: “In any suit * * * the claimant or respondent (as the case may be) shall be entitled to bring in any other vessel or person (individual or corporation) who may be partly or wholly liable either to the libellant or to such claimant or respondent by way of remedy over, contribution or otherwise, growing out of the same matter. * * * ” . Affirmed in part, reversed in part, sub nom. American Stevedores, Inc., v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011. . 153 F.2d 609. . “The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled to recover damages, at common law or otherwise on account of such injury or death, * * N.Y.Consol.Laws, ch. 67, § 11. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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 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. RADIATOR SPECIALTY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 9124. United States Court of Appeals Fourth Circuit. Argued Jan. 14, 1964. Decided Aug. 3, 1964. Whiteford S. Blakeney, Charlotte, N. C. (Blakeney, Alexander & Machen, Charlotte, N. C., on brief) for petitioner. Warren M. Davison, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and George B. Driesen, Atty., N. L. R. B., on brief) for respondent. Before SOBELOFF, Chief Judge, and HAYNSWORTH and BRYAN, Circuit Judges. ALBERT V. BRYAN, Circuit Judge: The National Labor Relations Board has found that the Radiator Specialty Company: (1) interfered with, restrained and coerced its employees, (2) failed to bargain in good faith and (3) refused to reinstate 141 strikers upon their unconditional offer to return to work after an unfair labor practice strike, thus adjudging the Company in violation of §§ 8(a) (1), 8(a) (5) and (1), and 8(a) (3) and (1) of the National Labor Relations Act. To review and vacate the covering Board order the Company has filed the present petition; to enforce the order the Board cross-petitions. Substantial support exists in the evidence for the first finding, but we think none is there for the Board’s conclusion that the Company did not bargain in good faith or that the strike was the result of an unfair labor practice entitling the participants to re-employment. A manufacturer of automobile parts and specialties with its place of business at Charlotte, North Carolina, the Company was engaged in commerce within the intendment of the Act. After a Board-supervised election, the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (Union) was certified on September 15, 1961 as the bargaining representative of the Company’s employees. The Union charged on February 2, 1962 that before and after the election the Company interfered with and coerced the employees in the exercise of their right to join a labor organization and to bargain collectively with the Company, contrary to the provisions of §§ 8(a) (1) and 7 of the Act. By an agreement of April 30, 1962, approved by the Regional Director of the Board, this grievance was settled. Negotiations for an agreement between the Company and the Union commenced on October 4, 1961 and continued until August 7, 1962. A strike was called on May 15,1962, upon the assertion that the employer had not bargained in good faith. Before the strike 29 meetings had been held; afterwards there were 8. On May 11, just before the strike, the Union again charged the Company with refusal to bargain in good faith. By subsequent amendment the Company was accused of refusal on and after November 16, 1962 to meet with the Union at all. At the time of the strike, five substantial items remained in dispute: wages, hospitalization, overtime, liability of the Union in the event of a violation of the no-strike clause, and arbitration. The Company declined to increase wages. A grievance procedure, consisting of four steps of conference between representatives of the Union and management, was propounded by the Company. The proposal was acceptable to the Union only with the addition of a fifth step, a provision for arbitration if the controversy was not settled at the earlier stages. Arbitration was rejected by the Company. The Union was agreeable to a no-strike stipulation, as was the Company, but the latter insisted on a liability clause in event of a breach which the Union thought exposed it to undue accountability. In the discussions both the Union and the Company submitted contracts and each had offered counterproposals. Without success at the last encounter, August 7, 1962, no further effort was made until a telephone call from the Union on November 16 resulted in an engagement for November 20. This was subsequently postponed until November 30, but, on the day before, the Company advised the Union it would not attend unless a conciliator was present. The conciliator set December 6 for a meeting, but later he notified the parties of his inability to be present. Although the Union requested a meeting a week afterwards, there were no further negotiations. On January 8, 1963 the Union wired the Company that the striking employees would abandon the strike and return to work unconditionally. Pursuant to this offer, 141 of the 153 strikers came to the Company’s offices and expressed a willingness to resume employment. The tender was not accepted. Reinstatement would have meant the discharge of a like number of replacements. A third charge was filed by the Union on January 24, 1963 accusing the Company of an unfair labor practice in its refusal to re-employ the strikers. It was supplemented to charge unlawful interference and coercion before and after April 30,1962, the date of the settlement, and before and after the strike of May 15. The settlement was alleged to have been vitiated by the subsequent conduct. All of the charges were incorporated into a consolidated complaint. The Board, to repeat, sustained all of the accusations. In the orders in review, it directed the Company to cease and desist from further interference and coercion and, affirmatively, required the Company to proffer the strikers immediate and full reinstatement, without prejudice to seniority privileges and to “make them whole for any loss of pay”. Posting of notices of the order and compliance was directed., I. In finding the Company guilty of a § 8(a) (1) offense, the Examiner considered the statements of the Company’s supervisors both before and after the settlement. In this he held that the later utterances justified rescission of the order approving the settlement. Wallace Corp. v. NLRB, 323 U.S. 248, 253-55, 65 S.Ct. 238, 89 L.Ed. 216 (1944). These statements in many instances consisted of assertions that the Company would never sign a contract. Not only had the-supervisors been instructed not to disparage unionization in any manner, but on January 17, 1962 in a letter to all employees the Company indicated that it was in fact engaged in contract negotiations. There is evidence, however, of other remarks by supervisors named by the Examiner which gives support to his conclusion. While these were scattered and frequently induced by employees’ questions, we cannot say that the Examiner, and the Board in accepting his findings, did not act upon substantial evidence. Accordingly, the cease and desist order should be enforced. II. The fact findings of the Examiner and the Board, however, do not justify the determination that the Company was not bargaining in good faith. It must constantly be recalled that the Act does not require the employer to agree with the bargaining agent, even in respect to “wages, hours and other conditions of employment”. The sole mandate of the Act is that the employer endeavor in good faith to reach an accord with the Union. § 8(d). The record brims with proof of spirited bargaining. Whether there was good faith must be gathered from the words, acts and motives of the parties. Solo Cup Company v. NLRB, 332 F.2d 447 (4 Cir. May, 1964), with opinion by Chief Judge Sobeloff. Here the circumstances do not negate its immanence throughout the meetings. Bargaining began with a conference on October 4, 1961, lasting a little more than an hour and consisting of introductions and a relation of a few of the grievances. Although the Union desired an earlier resumption, the next meeting was scheduled at its instance for October 24. Apparently through a misunderstanding, the Union did not appear and an adjournment was arranged for October 27. On this day the Company granted certain merit wage increases, and the parties reviewed each clause of a contract submitted by the Union. Immediate objection was pressed by the Company to the omission of the Union as a contracting party. A local, not then created, had been named in its place. The Company insisted upon its right to look to the Union, as the representative, for compliance with the agreement. November 6 was agreed upon for the next parley in order to permit the Company time to study the Union proposals. The Company supplied the Union with wage and classification information previously requested. Additionally, the Union’s proposals were reviewed and the meeting recessed until November 17. During a two-hour gathering on November 17, the Company presented its proposals, including the two stipulations which became major differences. The first was a grievance procedure: to begin with informal interviews between the Union and the Company and end with a fourth step consisting of submission of the problem to representatives of the Union and Company “for final discussion and settlement”. Similar levels of conference were embraced in the Union’s draft, but added was the disputed provision for decision by an impartial arbitrator. A decision affecting the two parties by anyone outside the plant was unacceptable to the Company. On the other hand, the Union saw chaos in terminating attempts at resolution of controversies at the level of partisan representatives, because failure of agreement there would leave the problem a live and festering issue. The second troublesome feature in the Company’s document was the “no-strikes, no-loekouts” clause. It prohibited lockouts, and it reserved to the employees all legal rights and recourse against the Company for recovery for injuries arising from any direct or indirect breach of the provision by the Company. On the other side, the clause outlawed any strike, walkout or similar work stoppage, as well as picketing and concerted action, having the effect of interrupting the Company’s production. No opposition to the covenant itself was voiced, but the recital of the Union’s liability for its breach was vigorously resisted as phrased altogether too broadly. Because of other engagements, the Company’s vice president and general manager who had led negotiations for the Company was occupied until November 30. The Union noted its objection to the delay and offered to assemble during weekends. On November 30, as well as on December 1, the 'two parties tendered other drafts. December 7 was a day of disruptive events. Before the meeting convened the Union representative asked for the release from work of the employees constituting the Union’s committee so that they might be present. The list contained 38 names. The Company demurred to the withdrawal of so many employees from work and on so short notice, as well as for the overcrowding of the conference room by this many committeemen. Nevertheless, the Company assented, shut down a section of its plant and adjourned to the Y.M.C.A. building. This assemblage lasted 5 hours, dispersing at 9 o’clock that night. By letter of December 12 the Company replied to the Union’s plaint about the long intervals between meetings. After remarking upon the serious amount of time the Company had been deprived of the services of its officers by the negotiations, it stated, “nevertheless, we will set aside everything we can in order to push ahead toward the completing of an agreement between us”. Also, the Company requested a reduction in the size of the employee committee. The Union representative, commenting upon the size of this committee, said that he knew the presence of so many at the bargaining sessions was “bound to” suspend plant production and that in one session these committeemen were “jumping up and jabbering, giving speeches, putting on acts”. He acknowledged that the aim of the “big committee” was to force concessions from the Company by harassment tactics. Meetings followed on December 14 and 19, all of them with the large committee. The Union expressed its willingness to accede to the position of the Company on some of the issues if the Company would alter its insistence in respect to arbitration, seniority and the wording of the no-strike clause. Over the objection of the Union, the next meeting was respited until January 10, the Company giving the Christmas closure of the plant as its principal reason. There were at least 15 more meetings •between the middle of January and April 27,1962. The Company offered a revised draft on January 17, which included an equalization of hours in accordance with the plan of the Union. It also allowed more generous holiday compensation. Vacation benefits were expanded to approach the Union demand, but no modification was made in the wage, liability or arbitration items. A conference on January 24 was marked by personal abuse of the Company’s representative by the Union leader and questioning of his truthfulness. At the February 5 session a conciliator from the United States Department of Labor attended and at his request the employee committee was reduced to its initial six. Because of the general manager’s engagement in Company litigation for two weeks, conferences were not renewed until March 6, when another representative came in for the Union. The Company placed the blame for the deadlock on the Union’s prior intermediary and agreed to two bargaining sessions on that day, one of 2y2 hours and the other 2 hours, morning and afternoon. Meetings of this nature continued at approximate weekly intervals until the strike began at 5:30 A.M. on May 15. The conferees were then apart on wages, hospitalization, overtime, seniority, liability and arbitration. Some substantial matters had been agreed upon, such as hours of work, management prerogatives, safety and housekeeping, termination, equalization of hours, holidays and general rules. Between the strike and the last gathering on August 7, 1962, there were, as already mentioned, 8 meetings. In one of them, June 20, the Union informed the Company that it was willing to make any type of retractions that were “honorable”. Finally, the Union asked if the Company would agree to the Union terms on wages, liability and hospitalization if the Union withdrew its other disputed proposals. Later this proposition was reduced to the two issues of wages and liability, the Union offering to compromise the differences on arbitration by giving the Company the right to select the arbitrator. None of these suggestions was agreeable to the Company and no further conferences were held. It seems to us that want of good faith in bargaining is more justly to be ascribed to the Union. To begin with, its reluctance to become a party to the contract at all hardly evinced a willingness to enter into a bargain. Next, an attempt was made to hinder production, to overawe management and break up the meetings by exaggerating the size of the Union committee and behaving as a rabble. A diatribe upon the Company’s negotiator personally was the last resort. The Company’s consent to continue to confer in the face of this conduct exhibited considerable good faith in bargaining. But the Board says default of the Company is proved by its persistence in the adoption of a non-mandatory bargaining subject into the agreement, that is the liability clause. We do not see the clause in this light. It is entirely different from an indemnity requirement, such as was involved in NLRB v. Davison, 318 F.2d 550 (4 Cir. 1964). Nothing more was demanded of the Union to secure the solvency of its promise, as in that case and in North Carolina Furniture, Inc., 121 NLRB 41. The no-loekout, no-strike terms were considered appropriate by both parties. A corresponding liability provision was included in the Company’s covenant. Since the no-lockout, no-strike terms are mandatory bargaining subjects, NLRB v. American National Insurance Co., 343 U.S. 395, 408 n. 22, 72 S.Ct. 824, 96 L.Ed. 1027 (1952); NLRB v. Wooster Division of Borg-Warner Corp., 236 F.2d 898, 903 (6 Cir. 1956), aff’d in part, rev’d in part, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), a statement of their enforceability would not seem to be a foreign feature. If, however, liability was not of mandatory character, it was quite harmless, for the clause was no more, as the Examiner concluded, than a declaration of the law. It read: “If the Union, either directly or indirectly, authorizes, promotes, supports or condones any violation of any provision of this paragraph, the Company shall have such rights and recourse as the law may provide and the Union shall be subject to such liability as the law may provide, including liability for any and all injury or damage which may result from such violations. * * * ” We do not understand how in good faith its inclusion could be resisted. Either alone or in conjunction with a concededly mandatory item, it cannot be treated as a factor of impasse in the negotiations. At the end the parties were unagreed upon wages, arbitration, seniority and overtime. Regardless of other concessions and recessions, neither party would relent on wages. This was their prerogative and privilege, but nevertheless it was the cause of the bargaining failure. III. Nor did the § 8(a) (1) violations themselves justify the strike. They were slight, without frequency and too fragmentary. It was a wholly economic work stoppage; it was not the result of any unfair labor practice. With the refusal to bargain unproved, the strike had no standing save as one to force the Company to surrender to the Union’s terms. Hence the employees who went out cannot be held entitled to their old jobs. The opposite conclusions of the Board are not supportable in fact or in law. We will enforce the Board’s cease and desist order, including the posting of the notice thereon required by the Board. We do not enforce so much of the order as requires reinstatement of the strikers, discharge of their replacements and payment of wages to the strikers during their absence. Order enforced in part and vacated in part. . 29 U.S.C. §§ 158(a) 1), 158(a) (5) and (1), and 158(a) (3) and (1). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained 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. ELECTRONICS CORPORATION OF AMERICA, Plaintiff, Appellant, v. HONEYWELL, INC., Defendant, Appellee. No. 73-1260. United States Court of Appeals, First Circuit. Argued Nov. 6, 1973. Decided Dec. 3, 1973. Certiorari Denied March 4, 1974. See 94 S.Ct. 1491. Daniel F. Featherston, Jr., Boston, Mass., with whom Featherston, Homans, Klubock & Griffin, Boston, Mass., was on brief, for plaintiff, appellant. James W. Noonan, Boston, Mass., with whom Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., was on brief, for defendant, appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. PER CURIAM. After argument and studying the briefs, we have come to the conclusion that we cannot improve on the thoughtful opinion of the district court, 358 F. Supp. 1230 (D.Mass.1973). We therefore affirm on the basis of that opinion. We add only two comments. The first is that appellant makes the pillar of its claim for punitive damages, fees, and costs, despite absence of any proof of actual damages, our statements in the prior case, Electronics Corporation of America v. Honeywell, Inc., 428 F.2d 191, 194 (1st Cir. 1970), that material misrepresentations “will damage” and that in a two-firm market “harm is sufficiently apparent” when such misrepresentations are made. While we cannot fault appellant for seizing on this language, we do not recant. When we spoke of the inevitability of harm we were not addressing the availability of damages but of relief. Because appel-lee’s harmful conduct was discontinued and no actual damage was shown no further relief is indicated. Our second comment is that in relying on the district court opinion, we do not indicate necessary agreement with its conclusion that palming off is not an essential element of a Lanham Act claim. We say this only because such a stance is not necessary for the decision of this appeal. Affirmed. Question: 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_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. CITY STATE BANK IN WELLINGTON, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee. No. 84-1927. United States Court of Appeals, Fifth Circuit. Dec. 19, 1985. Jones, Day, Reavis & Pogue, Thomas R. Jackson, Robert F. Middleton, Dallas, Tex., for plaintiff-appellant. Winstead, McGuire, Sechrest & Minick, Allen W. Kimbrough, Michael L. Parham, Clifford F. Altekruse, Thanksgiving Tower, Dallas, Tex., for defendant-appellee. Before GARZA, JOHNSON, and JERRE S. WILLIAMS, Circuit Judges. JOHNSON, Circuit Judge. Plaintiff-appellant City State Bank in Wellington, Texas (“CSB”), sued its former bonding company, defendant-appellee United States Fidelity & Guaranty Company (“USF & G”), to recover a claim made under CSB’s Bankers Blanket Bond for losses resulting from the dishonest activity of CSB’s former president, Chester Long. The district court granted judgment in favor of defendant USF & G, and City State Bank appeals. This Court affirms. I. BACKGROUND CSB is a small state-chartered bank located in Wellington, Texas. CSB is significantly smaller than the only other bank in Wellington, the Wellington State Bank. CSB was financially troubled during much of the period discussed in these proceedings. The vast majority of CSB’s outstanding stock (96.8 percent at the time relevant to this appeal) was held by a two-bank holding company, Security Bankshares, Inc. Security Bankshares, in turn, was owned by James L. Diamond, who owned forty percent of the stock, and Chester A. Long, who owned sixty percent of the stock. Pri- or to this acquisition, Long had been in the banking industry for eighteen years and had served as a bank examiner with the Federal Deposit Insurance Corporation and as president of Plaza National Bank and Home Savings and Loan Association in Bartlesville, Oklahoma. Diamond, a resident of Bartlesville, and Long became close friends and business associates after Long’s arrival in Bartlesville. On January 1, 1971, CSB obtained a contract of insurance entitled “Bankers Blanket Bond” from USF & G. The bond provided CSB with coverage up to $250,000 and insured CSB against “Loss through any dishonest or fraudulent act of any of the Employees____” The bond was renewed on January 1, 1980, for a three year period. In February 1978, the then president of CSB resigned in order to become executive vice president at the competing Wellington State Bank. Concerned that CSB might lose much of its business to its competitor, Long determined that he should take the position as CSB’s president. At approximately the same time, CSB’s Board of Directors elected Diamond as vice president. Diamond was re-elected vice president in 1979 and 1980 but performed no substantial services in that office for CSB. Diamond, however, served on the Board of Directors of CSB from the time of the acquisition of his interest in Security Bank-shares. In the spring of 1979, Jerry McClure approached Long, Diamond, and Don Eve concerning a possible investment for manufacturing a luxury club car or van. The name chosen for the enterprise was Laser Manufacturing, Inc. (“Laser”). Long and Diamond had previously been involved in a similar enterprise with McClure called the Sportwagon. After inspecting a prototype for the Laser club car, Diamond decided to invest. On May 4, 1979, Laser was incorporated in Texas with Diamond, Long, McClure, and Eve as directors. Three of the four directors (i.e., Diamond, Long, and Eve) invested a total of approximately $130,000.00 in Laser. Further, an investment corporation owned by Diamond, known as the Bartlesville Investment Corporation, invested $7,500.00 in Laser and loaned Laser $120,000.00. Thus, Laser began its operations with a fund of approximately $250,000.00. Laser quickly exhausted its initial funding. In June 1979 Laser borrowed an additional $100,000.00 from a new source, the National Bank of Commerce in Dallas. Diamond, Eve, Long, and McClure co-signed the note. In November 1979, Laser was again faced with a lack of funds. Moreover, no car had been produced for sale such that Laser was in a cashflow position. On November 20, Diamond and Eve arranged a line of credit for Laser with another source, the Union Bank & Trust (“UBT”) of Bartlesville. Long was authorized to draft on this line of credit as Laser required the funds up to an amount of $150,000.00. Upon being informed of Laser’s needs, Long would draw the money out of UBT and send it on to Laser’s account at National Bank of Commerce. On March 14, 1980, Laser executed a promissory note for a floorplan loan of $100,000.00 with yet another institution, the First Bank & Trust of Richardson. Diamond, along with the other Laser directors, signed the note. After the $150,000.00 line of credit at UBT had been exhausted on February 4, 1980, and during the negotiations for the floorplan loan, Long engaged in a series of actions which the district court termed as “draft kiting.” Although the $150,000.00 line of credit at UBT had been exhausted, Long continued to submit drafts against it. In all, Long sent approximately $120,000.00 worth of excess drafts to UBT for payment; each draft was returned unpaid. Long, however, had CSB provide a credit for each draft and transferred the credit to Laser’s account at National Bank of Commerce. UBT president Donaldson testified that he suspected a draft kiting scheme when Long submitted drafts identical to ones UBT had previously refused. Donaldson also testified that he believed that he had discussed the draft kiting with Diamond and that Diamond appeared concerned. Long's efforts to fund Laser through CSB continued into May of 1980. On May 6, Long, without Diamond’s knowledge or consent, signed Diamond’s name to a promissory note with CSB in the amount of $175,000.00. Long used $120,000.00 of the note’s proceeds to cover the overdraft of the line of credit with UBT. The remaining proceeds went to Laser’s account at National Bank of Commerce. The note was submitted to CSB’s Board of Directors on June 26, 1980, and approved by the directors attending the meeting. Although the minutes of the meeting indicated that Diamond was present, the district court found that Diamond did not attend the meeting. Throughout the summer, Diamond continued his involvement with Laser, including attending a car show in California with Long on May 28 and visiting the Laser facility in Richland Hills. By August 1980, however, Laser was near its end, and during the summer of 1980, Diamond determined to cease his involvement with Laser. On November 6, 1980, and on May 6, 1981, Long again, without Diamond’s knowledge or consent, signed Diamond’s name to a renewal of the $175,000.00 promissory note. On May 29, 1981, CSB sold a $90,000.00 participation interest in the note as renewed to Amarillo National Bank (“ANB”). When the note became overdue, ANB contacted Long, who assured ANB that the note would be paid. When Diamond was contacted about the note, Diamond denied any knowledge of it. Diamond was concerned because he had told the Texas State Banking Commissioner at the time he acquired Security Bankshares that he would not borrow from either of its member banks. After consulting with his attorneys, Diamond reported the note to the Texas State Banking Commissioner. The Banking Commissioner summoned Long and Diamond to Austin in late September 1981. Long was ordered to resign from CSB and did so at a meeting of CSB’s Board of Directors on September 27, 1981. Shortly thereafter, Long assigned his entire interest in Security Bankshares Inc. to Diamond. On April 16, 1982, ANB filed a civil action against CSB, Long, and Diamond in state court in order to recover its $90,-000.00 participation interest in the $175,-000.00 promissory note. The case was 'settled on December 19, 1983. As part of the settlement, Diamond and CSB posted an irrevocable letter of credit to ANB. At trial, Diamond explained that, while both he and CSB were obligated to pay the letter of credit, Diamond would pay it if CSB’s capital reserves were too low to permit CSB to contribute any money to pay the letter of credit. Noting this evidence, the district court in the instant case found that any recovery by CSB from USF & G would be used to reduce Diamond’s obligations under the letter of credit. In late 1981, Laser went out of business. Diamond’s investment company, Bartlesville Investment Corporation, foreclosed its security interest in Laser’s assets and sold them at public auction on January 19, 1983. On June 5, 1984, Long pleaded guilty to an indictment for forgery for signing Diamond’s name to the May 6, 1980, note to CSB. CSB initiated the instant suit to recover on the Banker’s Blanket Bond. Following a trial to the court on August 16-22, 1984, the district court granted judgment for defendant USF & G. The district court based its judgment on three independent grounds relevant to this appeal. First, the district court held that Long was not an “employee” covered under the terms of the bond. Second, the district court held that recovery for losses suffered as a consequence of the two renewals was barred because the bond was terminated in 1980 due to Diamond’s knowledge of Long’s dishonest acts in funnelling money to Laser through CSB. Third, the district court held that allowing any recovery on the bond was equitably barred because it would result in a double benefit to Diamond. CSB has the heavy burden of demonstrating that the district court erred in each of these three grounds. This Court’s examination, governed by Texas law, focuses on the latter two grounds. The Court reserves the question whether Long was an “employee” under the terms of USF & G’s bond. II. THE MERITS The district court found that Diamond, who was a principal stockholder, director and officer of CSB and a principal investor in Laser, knew that Long was funnelling money to Laser through CSB. Specifically, the district court found: Diamond was the mover and shaker behind Laser, sinking hundreds of thousands of his own dollars into an attempt to get it going. Diamond and Long used CSB as a conduit for funding Laser. In view of his close association with Long (“one of my best friends”), his substantial investment in Laser, and his continued involvement in Laser for nearly a year afterwards, Diamond’s testimony that he neither knew nor asked where the funds to sate Laser’s voracious financial appetite came from after May, 1980, is not credible. If Diamond did not know, it is only because he deliberately closed his eyes, an act sufficient to charge him with knowledge. Conclusions of Law Nos. 33, 34. The district court found Diamond’s knowledge relevant in two ways: (1) such knowledge terminated coverage under Section 11 of the bond; and (2) such knowledge was relevant in that principles of equity barred allowing recovery on the bond since any payment by USF & G on the bond would go to Diamond. CSB attacks both of these bases for the trial court’s judgment. A. Section 11 of the Bond; Diamond’s Knowledge of Long's Activity The district court held that recovery under the bond for losses suffered as a consequence of the two renewals of the forged promissory note was barred “because the bond was terminated as to Long before the first renewal due to Diamond’s knowledge of Long’s dishonest and fraudulent acts.” Conclusion of Law No. 38. The trial court’s conclusion was based on Section 11 of the bond which provides: This bond shall be deemed terminated or canceled as to any Employee — (a) as soon as the Insured shall learn of any dishonest or fraudulent act on the part of such Employee, without prejudice to the loss of any Property then in transit in the custody of such Employee____ CSB contends that the district court erred in applying Section 11 so as to defeat its claim on the fidelity bond. CSB provides several arguments to support its contention. The first is that the district court “applied an incorrect legal standard ... [in determining that] Diamond had knowledge of Mr. Long’s dishonest and fraudulent acts prior to the November 6, 1980 renewal of the forged note.” CSB Brief at 15. Particularly, CSB argues that the language of the bond requires an “actual knowledge” standard while the trial court applied only a “constructive knowledge” test. Courts have discussed whether an insured “learns” or “discovers” a fraudulent act in the context of bond provisions requiring the insured to give the insurer prompt notice after discovery of a fraudulent or dishonest act. These cases are helpful in determining whether the insured has learned of an employee’s dishonest or fraudulent act so as to terminate coverage as to that employee under bond provisions similar to Section 11. In determining when an insured is required to give notice, this Court has noted the “well-established rule ... that the Insured ... is not bound to give notice ‘until he [has] acquired knowledge of some specific fraudulent or dishonest act.’ ” FDIC v. Aetna Casualty & Surety Co., 426 F.2d 729, 739 (5th Cir.1970) (applying Texas law) (quoting American Surety Co. v. Pauly, 170 U.S. 133, 144, 18 S.Ct. 552, 556, 42 L.Ed. 977 (1898)). This Court has also emphasized, “Notice is not required when the obligee merely suspects or has reason to suspect the wrongdoing.” Id. Courts, however, have not been uniform in whether the knowledge which the insurer must show as a defense should be considered “actual” or “constructive.” Despite this difference in labeling the type of knowledge required, the cases indicate that the insured cannot be required to act on “mere suspicion” and that the insured’s subjective knowledge should at least be considered. See Utica Mutual Insurance Co. v. Fireman’s Fund Insurance Companies, 748 F.2d 118, 123 (2d Cir.1984). See also Central Progressive Bank v. Fireman’s Fund Insurance Co., 658 F.2d 377, 380 (5th Cir.1981) (applying Louisiana law to construe provision similar to Section 11). Indeed, a recent Texas court decision adopted a similar approach. In Fidelity & Casualty Co. of New York v. Central Bank of Houston, 672 S.W.2d 641 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.), the court held that the jury’s finding that the insured had discovered dishonesty by the employee should be upheld where the insured “had knowledge of facts from which [the insured] could have reasonably inferred that [the employee] DeLorenzo had acted dishonestly in connection with the Jackson loans.” Id. at 644. CSB argues that the district court applied an improper standard since the trial court stated that, “If Diamond did not know, it is only because he deliberately closed his eyes, an act sufficient to charge him with knowledge.” Conclusion of Law No. 34. CSB also points to the district court’s denial of a motion for new trial in which the district court, paraphrasing directly Central Bank of Houston, stated, “Texas law ... requires only that Diamond had knowledge of facts from which he could have reasonably inferred that Long had acted dishonestly.” Record Vol. Ill at 587. These statements, when read alone, might lead to the concern that the district court required Diamond to act on mere suspicion. However, when the opinion is read as a whole, it appears that the district court, consistent with Central Bank of Houston, noted the facts in evidence and drew conclusions regarding Diamond’s knowledge based on the evidence and the court’s observance of the witnesses. At trial, for instance, USF & G asserted that Glenna Hernandez, CSB’s cashier, knew of the $120,000.00 in draft kiting before the May 6, 1980, note was executed. The district court noted, “The drafts involved were so ‘unusual, remarkable and clearly adverse’ to CSB’s interests that knowledge of some fraud, or dishonesty could be imputed to Hernandez and, thus, to CSB____” However, the district court held that it would not draw the inference that Hernandez had such knowledge since the district court found “her testimony that she never suspected any wrongdoing to be credible.” Conclusion of Law No. 25. In contrast, the district court made a different finding with respect to Diamond. The trial court stated, “Crucial to the resolution of this case, however, is whether Diamond knew that Long was sending money to Laser from CSB over Diamond’s signature. The answer can only be yes.” Conclusion of Law No. 34. Further, the trial court explicitly rejected Diamond’s testimony that he did not know nor ask the source of Laser’s financial appetite. Thus, we conclude that the district court adopted a legal standard fully consistent with the jurisprudence in this area. CSB also contends that, even if the trial court applied the correct legal standard, Diamond had no knowledge of any fraudulent or dishonest acts of Long prior to September 1981. The trial court’s determination that Diamond had such knowledge is a question of fact subject to the clearly erroneous rule. See Fed.R.Civ.P. 52(a); Central State Progressive Bank v. Fireman’s Fund Insurance Co., 658 F.2d 377, 380-81 (5th Cir.1981). Diamond’s knowledge of Long’s fraudulent acts focuses on Long’s draft kiting on Laser’s line of credit with UBT. CSB concedes that Diamond knew that the drafts were submitted to UBT for payment by Long but points out that Long’s mere submission of drafts to UBT did not constitute fraudulent activity. Rather, CSB argues, Long’s activity was only dishonest because Long created an immediate credit for each draft and caused the funds to be transferred from CSB to Laser’s account at National Bank of Commerce. CSB concludes that Diamond could not have known of Long’s activity in posting such credits and therefore did not even have the opportunity to acquire knowledge of any dishonest activity by Long. As the district court pointed out, however, Diamond had the advantage of knowing not only that Long was submitting drafts but also that money was flowing into Laser since Diamond continued to receive financial reports regarding Laser. Further, UBT president Donaldson testified that he suspected a draft kiting operation and indicated that he so told Diamond. He testified that Diamond appeared concerned. Moreover, Diamond received copies of deposit slips dated from April 25, 1980, to May 6, 1980, which indicated money flowing into Laser’s account “from City State Bank, Wellington by order of J.L. Diamond.” Record Vol. VI at 500-01; Defendant’s Exhibit 98. While Diamond testified that he received these deposit slips sometime after May 1980, the slips were grouped together in Diamond’s files with Laser’s May 1980 budget. Id. at 503. The district court also noted Diamond’s close association with Long. From this evidence, it cannot be said that the district court clearly erred in rejecting Diamond’s self-serving testimony that he did not know the source of Laser’s “voracious financial appetite.” Conclusion of Law No. 34. CSB argues that, even if Diamond had knowledge of Long’s dishonest activity, such knowledge should not be imputed to CSB. Diamond was not only a principal stockholder of CSB’s holding company but was also a director and its vice president from 1978 through 1980. Under such circumstances, the district court did not err in imputing Diamond’s knowledge to that of CSB, which, as a corporation, can acquire such knowledge only through its agents. See International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567, 580 (Tex.1963). In Holloway, former officers of the corporation were charged with wrongdoing. One issue in Holloway was when the corporation learned of this wrongdoing. The Texas Supreme Court stated: [Njotice to an officer or agent is notice to the corporation in the circumstance where the officer or agent in the line of his duty “ought, and could reasonably be expected, to act upon or communicate the knowledge to the corporation.” ... The office of a corporation director or officer is more than nominal, and those assuming the duties and responsibilities of such offices are not justified in neglecting every precaution or investigation; it is their minimal duty and responsibility to protect the corporation against acts adverse to the interest of the corporation, whether perpetrated by fellow directors or by strangers to the corporation. 368 S.W.2d at 580. Similarly, Diamond’s duty to CSB as officer and director makes his knowledge imputable to the bank. See also Continental Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1376 (5th Cir.1983) (en banc) (whether knowledge of individuals should be imputed to corporation “must be discerned from the circumstances of each case”). Thus, CSB’s arguments fail to persuade that the district court erred in holding that Section 11 of the bond bars CSB from recovering for any losses resulting from the two renewals of the forged promissory note. B. Equitable Considerations The trial court also held that principles of equity barred CSB from recovering any losses on the bond with USF & G. This Court has recognized the application of such equitable principles. In FDIC v. Lott, 460 F.2d 82 (5th Cir.1972) (applying Texas law), for instance, the insurer argued that the bank was barred from recovering on a fidelity bond since the bank sought recovery for fraudulent acts of its president and majority stockholder. The insurer argued that, since the bank president was in sole control of the bank, the bank president should not be allowed to insure himself against his own fraud. 460 F.2d at 87. The Court agreed that “one in sole control of the bank should not be allowed to insure himself and profit from his own fraud.” Id. The Court, however, held that this principle did not apply in Lott because the district court had tailored its judgment specifically to exclude the bank president from participating in any recovery on the bond. Id. at 87 & n. 5. Significantly, the Court also noted: The jury’s verdict also forecloses [the insurer] Aetna’s assertion that it would be contrary to equitable principles to permit these directors to profit from their neglect of duties which brought about the losses to the bank. In their answers to special interrogatories the jury categorically found that none of the other directors knew of Long’s dishonest acts nor was their ignorance a proximate cause of the bank’s losses. Id. at 88. See also Fidelity & Casualty Co. v. Central Bank of Houston, 672 S.W.2d at 647. In the instant case, the district court noted several factors which led to its conclusion that recovery on the bond was equitably barred. Foremost was Diamond’s knowledge of Long’s dishonest activity. Conclusion of Law No. 34. Thus, unlike Lott, in which the factfinder found that other agents of the bank had no knowledge of the wrongdoing, the district court found that Diamond did indeed have such knowledge. Further, Diamond, a principal founder and investor in Laser — at least potentially — benefitted from the infusion of capital into Laser from the $120,000.00 in draft kiting engineered by Long. As the district court noted: While Diamond consistently described CSB as “Long’s deal,” he held nearly 40% of the stock beneficially. Diamond was the mover and shaker behind Laser, sinking hundreds of thousands of his own dollars into an attempt to get it going. Diamond and Long used CSB as a conduit for funding Laser. In the spring of 1980, Diamond told Long to “get [Laser] going or get me out.” Shortly thereafter, Long forged the May 6, 1980, note. While Diamond testified that he had decided before May, 1980, to pull out of Laser, i.e., to stop putting money in, he participated in operating Laser until the summer of 1980____ Diamond would have been cut in for a large slice of the pie if Laser had started turning a profit. Conclusion of Law No. 33. Further, no attempt was made to exclude Diamond as a principal stockholder from recovery, as was the ease in Lott. Rather, although some local persons in the Wellington area had invested in CSB since Long’s resignation, the purchase agreement specifically provides that “the previous shareholders [i.e., Diamond] would receive all the benefits from any payment of a bond claim.” Testimony of Richard Fourmention, Record Vol. V at 172. Moreover, the record also revealed that any payment on the bond would go toward reducing Diamond’s obligation on the letter of credit that Diamond and CSB obtained to settle the suit with Amarillo National Bank. Record Vol. VI at 450-51, 522. As the district court summarized, Diamond, who paid the attorney’s fees in the instant case, “is arguably the real party in interest here [although] CSB could realize some benefit from recovery by being relieved of its joint obligation with Diamond under the letter of credit. CSB, [however], is essentially wholly owned by Diamond.” Conclusion of Law No. 35. Thus, unlike the case in Lott where the judgment was specifically tailored to avoid violation of equitable principles, the district court here correctly decided that equitable principles barred Diamond from recovering through CSB on the fidelity bond. III. CONCLUSION Thus, we conclude that the district court did not err in holding that recovery on the fidelity bond was barred by Section 11 of the bond and by principles of equity. The judgment of the district court is AFFIRMED. . In addition to CSB, Security Bankshares held 94.3 percent of the stock of Security State Bank in Hedley, Texas. . Long continued to attempt to draft funds from Diamond and Eve. In October of 1980, Long drew two drafts on UBT accounts — $51,6441)9 on Diamond’s personal account and $43,141.24 on Eve’s personal account. UBT mistakenly paid the drafts, and the district court found that the money went to Laser. After the error was discovered, UBT refunded the money to Diamond’s and Eve's personal accounts. UBT president Donaldson, however, requested Diamond and Eve to sign guaranties for the money but orally assured them that UBT would not call on them for payment. Long signed a note in Security Bankshares Inc.’s name to replace Diamond’s and Eve’s guaranties. The district court noted Long’s activity in sending the drafts on Diamond’s and Eve’s personal accounts at UBT. The district court, however, found that this activity did not indicate any dishonesty on Long’s part since the drafts plainly indicated that Long was signing for Diamond and Eve. . The minutes noted, “[DJuring the meeting it was explained to the Board of Directors by C.A. Long that the $175,000 loan in favor of City State Bank in the name of J.L. Diamond was in fact not signed by J.L. Diamond and therefore not a valid note.” . The district court held that CSB gave prompt notice of the loss resulting from Long’s forging of the Diamond promissory note. CSB argues that this holding contradicts the court’s later holding that the bond was terminated as to Long because of Diamond’s knowledge of Long’s dishonest acts in the draft kiting scheme. We find no merit to this argument since the district court considered only Long’s knowledge of Long’s own acts in determining whether CSB had given prompt notice. The district court correctly concluded that Long’s knowledge could not be imputed to CSB since Long acted adversely to the interest of CSB in forging Diamond’s name on the promissory note. Further, although we note that the analysis of when a party "discovers’’ an employee’s dishonesty is helpful in interpreting provisions like Section 11, it cannot be said that the considerations underlying each are identical. One court, for instance, has recently noted that the purpose of notice provisions is to “permití ] the insurer to investigate the facts on which the claim is predicated and to adjust its books in order to maintain a proper reserve fund in light of the insured’s claim.’’ Utica Mutual Insurance Co. v. Fireman’s Fund Insurance Companies, 748 F.2d 118, 121 (2d Cir.1984). . Indeed, a leading treatise in insurance law notes the disparity in the approach: It is sometimes generally stated that the insured is required to give notice when he either knows or ought to know of the facts which may form the basis of a claim against the insurer. The requirement is also stated on the basis that the question is whether the insured acquired knowledge of facts from which he might reasonably conclude that the employee had been committing fraudulent and dishonest acts, and that to give rise to the duty to notify the insurer it is necessary that the insured have knowledge of the employee's default, whether express or implied, from actual or inferential facts. And again it is stated flatly that an employer is only required to notify the surety of facts actually coming to his knowledge____ 13A R. Anderson & M. Rhodes, Couch on Insurance 2d § 49:232 (1982) (citations omitted). . The district court was well justified in rejecting Diamond’s shaky testimony that he had received the records only later. For instance, Diamond testified on cross-examination: Q: You just don't know. You might have got them [the deposit slips] in May of 1980. A: I don’t think so. Record Vol. VI at 504. . Texas law requires a bank to elect three officers: a president, vice president, and cashier or secretary. Tex.Rev.Civ.Stat.Ann. arts. 342-409, 410 (Vernon Supp.1985). . CSB’s reliance on Luling Oil & Mfg. Co. v. Lane & Bodley Co., 49 Tex.Civ.App. 534, 109 S.W. 445 (1908), is unpersuasive in that the court there specifically held no such duty arose. . We note that the district court's holding regarding Section 11 of the bond reaches only losses resulting from the renewals of the forged promissory note. While a remand might be necessary if this Court affirmed only on this single ground in order to inquire whether CSB suffered loss prior to the renewals, no such remand is necessary in the instant case since our holding affirms the district court's independent ground that any recovery on the bond is equitably barred. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Markita JONES, Plaintiff-Appellant, v. AIRCO CARBIDE CHEMICAL COMPANY, Defendant-Appellee. No. 81-5306. United States Court of Appeals, Sixth Circuit. Argued Aug. 5, 1982. Decided Oct. 28, 1982. Isaac Lorean Conley, Jr., Lester, Richmond & Conley, Louisville, Ky., for plaintiff-appellant. Hubert Willis, Matthew Westfall, Middleton & Reutlinger, Charles Laurence Woods, III, Louisville, Ky., for defendant-appellee. Before MERRITT and CONTIE, Circuit Judges, and NEESE, District Judge. The Honorable C. G. Neese, Judge, United States District Court for the Eastern District of Tennessee, sitting by designation. CONTIE, Circuit Judge. This is an appeal by the plaintiff Jones of the dismissal of her complaint alleging racial discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The district court dismissed the plaintiff’s complaint on the basis that she failed to timely file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The court held that under Section 706(e), as amended, 42 U.S.C. § 2000e-5(e), a charge of discrimination must be filed with the EEOC within 180 days of the alleged unlawful conduct. The district court also held that the plaintiff failed to timely file a charge of discrimination with the Kentucky Commission on Human Rights (KCHR), which has a 180-day limitation period under state law. Ky.Rev.Stat. § 344.200. The district court held, therefore, that inasmuch as the plaintiff failed to timely file with an appropriate state agency, the 300-day extension of Section 706(e), 42 U.S.C. § 2000e-5(e), is not applicable. The plaintiff was discharged from her employment with the defendant on January 4,1980. On August 19, 1980, 228 days after her discharge, Jones filed a charge of racially discriminatory discharge with the EEOC. On August 22, 1980, in accord with Section 706(c), 42 U.S.C. § 2000e-5(c), the EEOC referred the charge to the KCHR. On September 8, 1980, the KCHR terminated its proceedings and referred the charge back to the EEOC. The EEOC subsequently terminated its involvement and issued plaintiff a right-to-sue letter. Ms. Jones filed this suit on January 9, 1981. Section 706(e), 42 U.S.C. § 2000e-5(e), provides in part: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in the case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the state or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency. Applying this provision to the facts of this case, the parties agree that the general rule requiring the filing of charge of discrimination with the EEOC within 180 days is not applicable. Kentucky is a “deferral” state so that the 300-day filing limitation is applicable if the aggrieved person initially institutes proceedings with the appropriate state agency. At the time that the EEOC referred the plaintiff’s charge to the KCHR, 231 days after the alleged unlawful conduct, the EEOC acted on behalf of the plaintiff in initially instituting state proceedings in compliance with the requirements of 42 U.S.C. § 2000e-5(c) and (e). The plaintiff’s charge was lodged with the EEOC on August 19,1980, but could not have been filed with the EEOC until either 60 days after the institution of state proceedings or after such proceedings have been terminated, whichever is earlier. See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Thus, the plaintiff initially instituted proceedings with the KCHR. Love v. Pullman, 404 U.S. 522, 525, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972). Further, the KCHR referred the charge back to the EEOC well within the 300-day period, so that the charge was filed with the EEOC within the time limitations of 42 U.S.C. § 2000e-5(e). In deferral states, a plaintiff has 300 days to file a charge of discrimination with the EEOC regardless of whether or not a charge has been filed within 180 days with the appropriate state agency. Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2490-2491 n. 16, 65 L.Ed.2d 532. In Mohasco, the plaintiff filed with the appropriate state agency on the 291st day after the alleged unlawful conduct. The court found that the plaintiff did initiate state proceedings even though the plaintiff failed to file with the EEOC within the 300 day period. This Circuit, as well as the First Circuit, interpreting similar language in the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(d), held that a deferral state plaintiff must file a charge within 180 days with either the state agency or the EEOC or the 300-day period would not be applicable. The Supreme Court, however, granted certiorari and remanded both cases for reconsideration in light of Mohasco, supra. Ewald v. Great Atlantic and Pacific Tea Co., Inc., 620 F.2d 1183 (6th Cir.), rev’d and remanded, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir.), rev’d and remanded, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980). This Circuit remanded the case back to the district court for further consideration. Ewald v. Great Atlantic and Pacific Tea Co., Inc., 644 F.2d 884 (6th Cir. 1981). The First Circuit held that 300 days is to be allowed for federal filings in deferral states even if no charge has been filed with the state agency within 180 days. Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 420 (1981). See also, Aronson v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981); Owens v. Ramsey Corp., 656 F.2d 340 (8th Cir. 1981); Wiltshire v. Standard Oil Co. of Cal, 652 F.2d 837 (9th Cir. 1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1737, 72 L.Ed.2d 153 (1982); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981); Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981). Since the plaintiff was not required to file with the KCHR within 180 days, the only issue remaining in this case is whether or not the plaintiffs federal action is barred because she failed to initiate proceedings before the KCHR prior to the expiration of the state’s statute of limitations. Section 706(e), 42 U.S.C. § 2000e-5(e), does not state that resort to state proceedings must be within time limits specified by the state. Section 706(e), 42 U.S.C. § 2000e-5(e), only provides that a 300-day limitation period is applicable for a timely federal filing with the EEOC under Section 706(b), 42 U.S.C. § 2000e-5(b), when proceedings are initially instituted with an appropriate state agency. Section 706(c), 42 U.S.C. § 2000e-5(c), however, states that when an unlawful employment practice occurs within a deferral state, a charge may not be filed with the EEOC until after “the expiration of sixty days after proceedings have been commenced under the state or local law, unless such proceedings have been earlier terminated.” (emphasis added). The application of the 300-day limitation period within Section 706(e), 42 U.S.C. § 2000e-5(e), applies only to deferral states where proceedings must first be instituted with an appropriate state agency under Section 706(c), 42 U.S.C. § 2000e-5(c). Section 706(c), 42 U.S.C. § 2000e-5(c), requires only that the grievant commence state proceedings. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). Nothing whatever in the section requires the respondent to commence those proceedings within the allotted time under state law to preserve a right of action under Section 706(f), 42 U.S.C. § 2000e-5(f). In Oscar Mayer, supra, the Supreme Court construed Section 14(b) of the Age Discrimination in Employment Act of 1967 (ADEA) in a manner consistent with the provisions of Section 706(c), 42 U.S.C. § 2000e-5(e), in holding that there is no requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the state within whatever time limits are specified by state law. Id. at 759, 99 S.Ct. at 2073. The court stated: Individuals should not be penalized if states decline, for whatever reason, to take advantage of these opportunities. Congress did not intend to foreclose federal relief simply because state relief was also foreclosed. The structure of the ADEA reinforces the conclusion that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy. The ADEA’s limitations periods are set forth in explicit terms in 29 U.S.C. §§ 626(d) and (e), not § 14(b), 29 U.S.C. § 633(b). Sections 626(d) and (e) adequately protect defendants against stale claims. Id. at 761-62, 99 S.Ct. at 2074-2075 (citations omitted). Several cases have held that the conclusion drawn from Oscar Mayer is that compliance with state time limitations must be deemed irrelevant for purposes of determining whether a complainant has 180 or 300 days to file notice to sue with the EEOC. Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1982); Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir. 1981); Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981); Bean v. Crocker Nat’l Bank, 600 F.2d 754 (9th Cir. 1979). In Citicorp Person-To-Person Financial Corporation v. Brazell, 658 F.2d 232 (4th Cir. 1981), the Court stated: In Oscar Mayer, the Supreme Court held that a somewhat comparable requirement of exhaustion of state remedies under the [ADEA] could be met by an untimely filing of a charge with the state agency, for the federal statute did not provide that the prerequisite state charge must be filed within the time limitations prescribed by state law. Oscar Mayer requires that we give § 706(c) of Title VII a similar construction. Id. at 234 (citations omitted). Oscar Mayer holds that in commencing an action under either Section 14(b) of ADEA or Section 706(c) of Title VII a timely filing under state law is not necessary in order to properly file with the EEOC. An untimely filed state proceeding is “commenced” within the meaning of both Section 14(b) of the ADEA and Section 706(c) of Title VII so as to make available the 300-day filing period with the EEOC. To read a requirement into the provisions of Section 706(e), 42 U.S.C. § 2000e-5(e), that timely filing under state law is necessary in order to obtain the 300-day filing period, would be inconsistent with the Supreme Court’s holding in Oscar Mayer as well as with the purpose of Title VII. We therefore find that plaintiff Jones’ action is not barred for failure to commence proceedings with the KCHR in a timely fashion under state law. Further, we find that the plaintiff timely filed with the EEOC within 300 days of the alleged unlawful conduct pursuant to Section 706(e), 42 U.S.C. § 2000e-5(e). Accordingly, judgment and order of the district court is REVERSED and REMANDED for consideration upon the merits of plaintiff’s complaint. . In dictum, the Supreme Court recognized that the language of Section 706(e), 42 U.S.C. § 2000e-5(e), has been interpreted to require that a complainant file his charge initially with the appropriate state agency within 180 days (which is the time a complainant must file with the EEOC in a non-deferral state) in order to preserve rights under Title VII and obtain the 300-day filing period with the EEOC. See Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975). The Court rejected this approach, however, stating that “we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include.” Mohasco Corp. v. Silver, 447 U.S. at 816 n. 19, 100 S.Ct. at 2491-2492 n. 19. . Because of similarity of purpose and structure, we refer to cases arising under both the ADEA and Title VII concerning the filing requirements with the EEOC and appropriate state agencies. Both Title VII and the ADEA share a common purpose, i.e., elimination of discrimination in employment, both statutory schemes are similar and both statutes have almost identical filing requirements and statutes of limitation. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 395, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234 (1982); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981). . One issue not raised by the parties is whether the construction given to 42 U.S.C. § 2000e-5(e) by the Court in Mohasco has retroactive application. In Hall v. Ledex, Inc., 669 F.2d 397, 399 (6th Cir. 1982), the Sixth Circuit adopted the approach of Wiltshire v. Standard Oil of Cal., 652 F.2d 837 (9th Cir. 1981), that Mohasco should not be applied retroactively. In Wiltshire, the Ninth Circuit held that the rule of Mohasco should be applied only to those claims submitted to the EEOC after June 23, 1980 (the date of announcement of Mohasco ). In the present case plaintiffs charge was first submitted to the EEOC on August 22, 1980, so that the Mohasco case does apply. . There are two differences between the statute of limitations of the ADEA, 29 U.S.C. § 626(d), and the statute of limitations of Title VII, 42 U.S.C. § 2000e-5(e). First, Section 626(d) explicitly refers to Section 633(b) (requiring the filing of a charge of discrimination within a deferral state with the appropriate state agency first) whereas Section 2000e-5(e) does not specifically refer to Section 2000e-5(c) (same requirement as Section 633(b) of the ADEA). Section 2000e-5(e), however, provides that the 300-day filing period is applicable when state proceedings are initially instituted. We find that the language of Section 2000e-5(e) implicitly refers to Section 2000e-5(c) in the same way that Section 626(d) of the ADEA makes the reference explicitly. Second, Section 626(d) states that no civil action may be filed unless a charge is filed with the Secretary whereas Section 2000e-5(e) only provides when a filing with the EEOC is timely without reference to whether or not a civil action may be commenced. We find this, however, not to be a significant difference inasmuch as both sections are respectively interpreted as statutes of limitations in the bringing of federal civil actions. . The Supreme Court held in Oscar Mayer that in order to determine if a state’s statute of limitations will bar a federal action, the proper inquiry is to determine whether Congress mandated that resort to state proceedings must be within time limits specified by the state. In reviewing the language of Section 14(b) of the ADEA, which was modeled after Section 706(c) of Title VII, the court found no implication that the state limitations apply. Indeed, the Court found that the following language expresses Congress’ intent explicitly that there is no requirement that commencing state proceedings must be timely under state law. The last sentence of Section 14(b) provides: If any requirement for the commencement of such proceedings is imposed by a state authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate state authority. 29 U.S.C. § 633(b). Section 706(c) of Title VII, 42 U.S.C. § 2000e-5(c) contains exactly the same express declaration of Congress’ intent that a state proceeding is deemed commenced upon filing a complaint regardless of whether or not such filing was timely under state law. 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_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". SEARFOSS v. LEHIGH VALLEY R. CO. No. 253. Circuit Court of Appeals, Second Circuit. April 1, 1935. Stephen A. Machcinski, of New York City (Edward J. McCrossin, of New York City, of counsel), for plaintiff-appellee. Alexander & Green, of New York City (H. S. Ogden, of New York City, of counsel), for defendant-appellant. Before MANTON, L. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge. This action was brought under the Federal Employers’ Liability Act (45 USCA § 51 et seq.) to recover for personal injuries sustained by the plaintiff when returning from work at the end of the day on a rail- - road motorcar provided by the defendant for that purpose and operated by an employee of the defendant upon defendant’s railroad. The plaintiff was a track repairman in the employ of the defendant. On August 1, 1933, the motorcar upon which he was riding with some twenty other such employees ran into a caboose at the end of a freight train of the defendant which had stopped on a sharp curve where it was hidden from the view of the operator of the motorcar until he reached a point so near the caboose that he was unable, at the speed he was running, to stop in time to avoids collision. The defendant does not deny the jurisdiction of the court under the act, supra, as applied to the facts in this case; nor that the motorcar was being operated at an excessive and negligent rate of speed. The only other claimed negligent act of the defendant in stopping its train as it did was not submitted to the jury. The jury returned a substantial verdict for the plaintiff which the defendant moved to set aside. The motion was denied upon condition that a remittitur be filed as to a portion of the amount,’ and after that was done the judgment on the verdict from which this appeal was taken was entered. Two errors are claimed. One relates to the basis upon which the court fixed the amount of the remittitur upon the filing of which the denial of the motion to set aside the verdict was conditioned and the other to the exclusion of evidence. The verdict as returned by the jury was for $43,000. The motion to set it aside being made at once, the court stated that it was excessive and should be reduced to $20,-000. Counsel for the plaintiff, however, having asked and been granted permission to submit a brief before final action on the motion, succeeded in having the motion held for further consideration. The court later re-announced its decision to set aside the verdict and grant a new trial unless the plaintiff consented to a reduction. In so doing a short memorandum was filed in which it was stated that in the previous announcement immediately after the reception of the verdict no thought had been given to the counsel fee and necessary expenses the plaintiff would have to pay. Presumably the expenses referred to were the expenses of the trial. This was the reason given for making a reduction of the verdict to $30,000 instead of to $20,000 the condition upon which the motion was denied. Obviously it was not a sound reason, for the only recovery for trial expenses to which the plaintiff is entitled is limited to his taxable costs. But despite this, there was no reversible error. The first expression of the court’s opinion as to the amount of the verdict decided nothing. The matter remained open until the eventual decision was made. That decision was an exercise of the court’s discretion in favor of the defendant even though not so much in its favor as it had been led to expect. Where the claimed ex-cessiveness of a verdict is not purely a matter of law — as where the maximum recovery permitted by a statute has been exceeded— but is only one of judgment as to the amount proved by the evidence, the decision rests with the trial court. Southern Railroad Co. v. Bennett, 233 U. S. 80, 34 S. Ct. 566, 58 L. Ed. 860. This court lacks the power to re-dew as a question of fact the subject of excessive damages. Fairmount Glass Works v. Coal Co., 287 U. S. 474, 481, 53 S. Ct. 252, 77 L. Ed. 439; Jacque v. Locke Insulator Corporation (C. C. A. 2) 70 F.(2d) 680; Ford Motor Co. v. Hotel Woodward Co. (C. C. A. 2) 271 F. 625, 630. Lacking that power, we cannot decide that the judgment as rendered was in fact excessive. Consequently no reversible error has been shown in the denial, upon the condition finally imposed, of the motion to set aside the verdict and grant a new trial. For the limitations upon our power to review the action of a trial court upon motions for a new tidal, see Miller v. Maryland Casualty Co. (C. C. A.) 40 F.(2d) 463. The defendant endeavored to prove on the question of damages that the plaintiff was guilty of contributory negligence in failing to protest to the driver of the motorcar that his speed was excessive. It appeared that the plaintiff was familiar with the track over which the car was being operated and knew that it was approaching a sharp curve where the view ahead was obstructed but neither warned the driver nor made any protest as to the excessive speed of the car. When the driver of the car was being examined as a witness at the trial, he was asked by the defendant if he would have reduced the speed if any of the men had protested. On objection by the plaintiff the question was excluded. The court later correctly charged the jury that the burden of proving contributory negligence was upon the defendant and explained its effect on the question of damages. In this connection the legal significance of the plaintiff’s failure to warn the driver of the motorcar, provided the jury found that the circumstances were such that the duty was his under the law, was adequately covered. The duty was expressly conditioned upon a finding by the jury “that such warning would have been heeded and the accident avoided.” This was but a recognition of the fact that, as it is the ability to act to prevent or minimize his injuries that imposes the duty upon the plaintiff to give a warning or make a protest, where that ability is lacking no duty exists for the law does not require a futile act. And that is precisely what made the exclusion of the question harmful error. The defendant was required to prove, to show the plaintiff’s contributory negligence, a fact which the court refused to permit it to prove by the only witness who could have absolute knowledge of the subject. It may well be argued that the jury was entitled to infer that a protest or warning, if given, would have been heeded and would have prevented the accident. While that is true enough, it is equally true that the defendant was entitled to introduce competent direct evidence upon the subject. To compel it to leave a question of fact of such importance on the matter of damages to inference merely was to deny its right to prove by direct evidence a material issue raised by the pleadings. The exclusion of the question was harmful error provided the evidence was competent. In this regard it is urged that the driver of the car could only have testified as to his present opinion concerning what he would have done under circumstances which never existed; that he could only have given a conclusion based upon an hypothesis contrary to fact. Such reasoning, however, loses sight of the real character of such evidence. While the question was in the form of a condition contrary to fact, it called not for an opinion or conclusion but for an answer showing the car driver’s present knowledge of his willingness while driving the car before the accident to accept and be guided by a warning or protest as to speed. He of all men was competent to state that fact and because the defendant was denied the right to have him do so it is reasonable to believe that the jury was deprived of evidence which should have had a material bearing upon the size of the verdict. Judgment reversed. 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_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". Steven John SLOTKIN, an infant by his mother and natural guardian, Charlotte SLOTKIN, and Charlotte Slotkin, as Executrix of the Estate of Bert Slotkin, deceased, Plaintiffs-Appellants, v. CITIZENS CASUALTY CO. OF NEW YORK, Allstate Insurance Company, American Motorists Insurance Company, American Mutual Insurance Company of Boston, Employers Mutual Liability Insurance Company of Wisconsin, Guaranty Reinsurance Company, Urbaine Fire Insurance Company, Grange League Insurance Co., National Casualty Co., Hardware Mutual Casualty Co., Arkwright-Boston Mfrs. Mutual Insurance Co., Paul Ratner, George Berkowitz, Christopher McGrath, Jr. and John McGrath, Defendants-Appellees. No. 1342, Docket 82-7137. United States Court of Appeals, Second Circuit. Argued Aug. 11, 1982. Decided Jan. 20, 1983. Fred R. Profeta, Jr., New York City (Friedman & Eisenstein, of counsel, Theodore H. Friedman, Jethro Eisenstein and Max Toberoff, New York City, on brief), for plaintiffs-appellants. Kenneth A. Sagat, New York City (D’Amato & Lynch, of counsel, Mary Jo Lynch, New York City, on brief), for defendants-appellees Allstate Ins. Co., Urbaine Fire Ins. Co., Arkwright-Boston Mfrs. Mut. Ins. Co., Hardware Mut. Cas. Co., and Nat. Cas. Co. William F. O’Connor, New York City, for defendant-appellee American Ins. Co. of Boston. Howard R. Cohen, New York City (Bower & Gardner, New York City, of counsel), for defendant-appellee Guaranty Reinsurance Co. Before VAN GRAAFEILAND and PIERCE, Circuit Judges, and MARKEY , Chief Judge. Then Chief Judge of the U.S. Court of Customs & Patent Appeals, sitting by designation. VAN GRAAFEILAND, Circuit Judge: No rule of American jurisprudence is better established than the salutary one which requires a lower court to carry out faithfully the express mandate of its appellate superior. See, e.g., Kansas City Southern Ry. Co. v. Guardian Trust Co., 281 U.S. 1, 11, 50 S.Ct. 194, 197, 74 L.Ed. 659 (1930); Ex parte Union Steamboat Co., 178 U.S. 317, 318-19, 20 S.Ct. 904, 905, 44 L.Ed. 1084 (1900); Ex parte Sibbald v. United States, 37 U.S. 488, 492, 9 L.Ed. 1167 (1838). The same rule prohibits litigants from circumventing such lower-court compliance “by stipulation or otherwise.” Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 136, 87 S.Ct. 932, 937, 17 L.Ed.2d 814 (1967). See also United States v. E.I. Du Pont de Nemours & Co., 366 U.S. 316, 325 n.6, 81 S.Ct. 1243, 1250 n.6, 6 L.Ed.2d 318 (1961); Reserve Mining Co. v. Lord, 529 F.2d 181, 188 (8th Cir.1976). Appellants now ask this Court to reverse a district court judgment, 530 F.Supp. 789, which dismissed appellants’ complaint because, following remand from this Court, they failed to pursue their claim against the defendants in accordance with our mandate. This we decline to do. The issue before this Court on the prior appeal, 614 F.2d 301, was whether plaintiffs could secure state court approval and accept the benefits of a $185,000 infant settlement after they discovered that they had been misinformed as to the amount of a hospital’s insurance coverage, and then recover in fraud from the persons allegedly responsible for the misinformation. They sued Citizens Casualty Co. of New York, the hospital’s insurance carrier, Paul Ratner, Citizens’ Vice-President, George Berkowitz, Christopher McGrath, Jr. and John McGrath, three attorneys representing the hospital, and ten reinsurance carriers. The action was discontinued as against three of the reinsurance. companies; the district judge, 447 F.Supp. 253, dismissed the complaint as against the other seven at the close of the plaintiffs’ case. Subsequently, the district judge set aside verdicts totaling $680,000 against the remaining defendants, because plaintiffs had effectuated the infant’s settlement some three months after they had been informed of the true facts concerning insurance coverage. This Court reversed as to all defendants except George Berkowitz and remanded for further proceedings in the district court. In so doing, we had the choice of two possible dispositions: (1) we could have reinstated the $680,000 verdict and remanded for retrial against the defendants not included in the verdict or (2) we could have remanded for retrial against all of the defendants. Instead of our making the choice, we permitted plaintiffs to make it. We said: Because we have also held that the court below should not have dismissed the complaint against the reinsurers, plaintiffs have an option: they may either reinstate the verdict and judgment of $680,000 against Citizens and the three individuals, or they may retry the case ab initio against all appellees except George Berkowitz on both liability and damages. They may not do both. 614 F.2d at 318. In conformity with this Court’s mandate, the district court issued an order directing plaintiffs to exercise their option on or before February 19, 1981. At 4:50 p.m. on February 19, plaintiffs notified the district court that they were “electing to retry the case.” However, they were not electing to “retry the case ab initio against all appellees except George Berkowitz on both liability and damages.” Five minutes prior to filing their notice of election, plaintiffs had agreed to a settlement with Citizens and the McGraths, and plaintiffs, in fact, were electing to retry the case only against the reinsurance companies. An understanding of why this election did not constitute compliance with our mandate requires a brief review of the facts surrounding the settlement. At the time the $680,000 verdict was entered against Citizens and the individual defendants, Citizens was insolvent, and its affairs were being administered by the Liquidation Bureau of the New York Insurance Department. See Matter of Stewart v. Citizens Casualty Co., 34 A.D.2d 525, 308 N.Y.S.2d 513, aff’d, 27 N.Y.2d 685, 314 N.Y.S.2d 7, 262 N.E.2d 215 (1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 805 (1971). Shortly following the verdict, Paul Ratner died without assets. The McGraths had $100,000 in liability insurance, which did not afford coverage for acts of intentional wrongdoing. The Liquidation Bureau took the position that they could not pay any interest on the judgment, and plaintiffs’ attorney conceded that this position was correct. See Matter of People (Norske Lloyd Ins. Co.), 249 N.Y. 139, 146-47, 163 N.E. 129 (1928); Matter of the Liquidation of Manhattan Casualty Co., 29 A.D.2d 753, 287 N.Y.S.2d 748 (1968). However, plaintiffs’ attorney thought that the Bureau “would be responsible for a claim based upon the verdict of $680,000 plus 6% interest from the date of the fraud up to the date of judgment which would make the amount roughly about $1,000,-000.” He concluded that, if the Liquidation Bureau would accept a claim in the sum of $1,000,000, this would “give us the same rights against the Liquidation Bureau as we would have if we proceeded on the judgment.” He advised Mrs. Slotkin that “it would be very foolish indeed to elect to retry the case and start from the beginning, giving up the judgment we now have .... ” At another point, the attorney said, “Under no circumstances were we going to start from the beginning and retry the case against all of the defendants, except Berkowitz.” Because of the McGraths’ limited and questionable coverage, they would have substantial personal exposure under the reinstated verdict and judgment. In the words of plaintiffs’ attorney, the Liquidation Bureau was “extremely anxious to get the MCGRATHS (sic) out of the case without exposing them to the enormous personal liability that proceeding on the judgment would involve”, and “the overriding reason for the Liquidation Bureau seeking a settlement was to protect the MCGRATHS (sic) .... ” Plaintiffs’ attorney believed, however, that he would have been able to collect “very little indeed” from the McGraths personally. When the Liquidation Bureau agreed to accept a claim from plaintiffs in the sum of $1,000,000, which was expected to result in a cash payment of approximately fifty cents on the dollar, and the McGraths’ insurance carrier agreed to pay $100,000, plaintiffs settled with these defendants. Like the district court, we agree with the conclusion of plaintiffs’ own attorney, who stated that the settlement with the Liquidation Bureau and the McGraths “represents about all that we would be able to accomplish, as a practical matter, in the event we proceeded on the judgment.” Obviously, plaintiffs did not elect to retry their case ab initio against all of the defendants on both liability and damages. A retrial “ab initio” means that all parties start equally from square one. The parties are then free to negotiate individual compromises of their differences, having in mind, as all negotiators must, the extent of the injuries, the likelihood of recovery, the availability of evidence, the cost of trial, the delays in judicial proceedings, and the financial responsibility of the defendants. See Rafferty v. Rainey, 292 F.Supp. 152, 154 (E.D.Tenn.1968); City of Detroit v. Grinnell Corp., 495 F.2d 448, 462-63 (2d Cir.1974). A plaintiff who, like the plaintiffs herein, has eliminated one or more of the above unknowns before reaching square one, has a distinct advantage over one who has not. Plaintiffs have, in fact, worked out their own scenario for their proposed retrial. This contemplates that plaintiffs and the reinsurers will stipulate that the amount of any recovery against the insurers will be the amount of plaintiffs’ judgment plus interest, less the amount of the settlement (Plaintiffs’ Brief at 5); and the sole issue on retrial then will be whether Ratner had acted as agent for the reinsurance companies (Plaintiffs’ Reply Brief at 10). Plaintiffs’ attorney believed “there was a good chance of obtaining a settlement from the insurance carriers once we made our election to retry the case without the need of completing a trial.” However, that is not the way this Court wrote the script. Because plaintiffs have, in practical effect, reinstated the verdict against Citizens and the individual defendants and are unable to retry the case ab initio against all the defendants except Berkowitz on both liability and damages, the district court did not err in dismissing the complaint as against the reinsurers. The judgment of the district court is affirmed. . Because we affirm for the reasons stated, we need not reach the district court’s alternate holding that the claims against the reinsurers are insufficient as a matter of law. 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_app_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. ALEXANDER v. STANDARD ACC. INS. CO., DETROIT, MICH. No. 2306. Circuit Court of Appeals, Tenth Circuit. Oct. 10, 1941. Luther Bohanon, of Oklahoma City, Okl. (Bohanon & Adams and Bert B. Barefoot, Jr., all of Oklahoma City, Okl., on the brief), for appellant. R. D. Hudson, of Tulsa, Okl. (Ned Looney and Clyde J. Watts, both of Oklahoma City, Old., on the brief), for appel-lee. Before BRATTON, HUXMAN, and WILLIAMS, Circuit Judges. HUXMAN, Circuit Judge. Standard Accident Insurance Company executed a public liability policy of insurance with E. W. Jones, Inc., agreeing to indemnify it for damage arising out of any accident in the operation of its business of drilling, developing and producing oil and gas wells. Hugh Alexander suffered an injury December 6, 1937, while working for the Company. June 5, 1939, he filed suit for damages against the Company in the state courts of Oklahoma. The summons and a copy of the petition were delivered to Standard by the Company, with the request that it defend the suit. Standard refused to defend on the ground that there was no liability because the Company had failed to serve it with notice of the accident as required by the policy. Appellant obtained a judgment against the Company for $20,000. Execution issued thereon and was returned with the notation: “No property found.” Garnishment proceedings were thereupon instituted against Standard in the state courts of Oklahoma, as provided by state law. These proceedings were removed to the United States District Court for the Eastern District of Oklahoma where a trial was had to a jury. At the close of Plaintiff’s case, the court directed a verdict for Standard. The policy provides that: “Upon the occurrence of an accident irrespective of whether or not a claim for damages appears reasonably probable, the Assured shall give Immediate Written Notice thereof, with the fullest information obtainable, to the Company at its Home Office, Detroit, Michigan, or its duly authorized Agent. * * * Notice given by or on behalf of the Assured to any authorized Agent of the Company within the State where the accident occurs, with particulars sufficient to identify the Assured, shall be deemed to be notice to the Company.” To establish a cause of action, it was necessary for plaintiff to prove that this provision of the policy had been complied with. No direct evidence was adduced showing that written notice was given to Standard. Plaintiff’s position seems to be that the evidence established that some kind of notice, “either oral, direct or indirect”, was given, and that, if oral, Standard waived the provision of the policy requiring that written notice be given. The testimony upon which plaintiff relies to establish notice is as follows: Charles Christianson testified that he was employed by the R. H. Siegfried Company which represented Standard; that the R. H. Siegfried Company was a general agent of Standard; and that he had charge of the claim department dealing with the investigation and payment of claims. At the time appellant was injured, he was living at the home of his father, Harry Alexander. After the injury he spent approximately ten days or two weeks in a hospital, when he was taken back to his father’s home. Harry Alexander, the father of appellant, testified that a day or two after appellant returned home a man came to his house and talked to him; he said he was an insurance adjustor; he did not remember his name. The next time he saw him was at the trial of appellant against the Company in the state court; he identified Christianson in the courtroom as the man who came to his house that day; Christianson asked how the accident happened and asked who was present at the time appellant was injured, and he told him. Truman Ring testified that he was one of the roustabouts working on the lease at the time appellant received his injury; that he talked to a man after the accident occurred who said he was a representative of the insurance company which carried the insurance for the company; that his name was “Christian or Christensen or Christmas, or something like that.” George Dodson testified that he was working for the company on the day the accident occurred; that after the accident and after appellant had been returned home from the hospital, he was approached by an adjustor; that he did not remember his name; that the adjustor asked him about the accident in which appellant was injured; that it was about eight or nine days after the accident occurred that he had this conversation with the adjustor. Appellant testified that after he got home he saw an insurance adjustor for an insurance company, who asked about the accident, and he told him. Charles Pittinger testified that he was employed by E. W. Jones, Inc., on the day appellant was injured; that he reported the occurrence to H. B. Jones, his superior officer; that he also talked to E. W. Jones, president of the company, and told him about the accident. Appellant offers no positive, direct evidence that either written or oral notice was given by the Company to either the general agent or to Standard. Can it be said that the evidence that an adjustor who was an employee of the General Agent appeared and made inquiry concerning the accident is such that from it a jury might reasonably conclude, according to reason and the common experience of men, that the company did give notice? If it can, the court was in error in directing a verdict for Standard. If not, the ruling of the court was right, because the competency of circumstantial evidence offered to establish an ultimate fact, that is, whether the circumstances may reasonably tend to prove the ultimate fact, is a question of law in the first instance, to be decided by the court. United States Fidelity & Guaranty Co. v. Des Moines Natl. Bank, 8 Cir., 145 F. 273, 279; Payne v. Blevins, 4 Cir., 280 F. 310; C. M. & St. Paul Ry. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041. If the inference may be drawn from these circumstances that the Company gave notice, then the question arises: To whom was it given? — to the agent or to Standard? If the notice was to the agent, was it oral or written? The policy provided for written notice and the agent had no authority to waive the provisions of the policy requiring written notice. All of these questions must be answered before it can be said that the Company gave notice to Standard. A proper answer to them cantlot be reasonably inferred from the sole circumstance that an adjustor for the agent appeared and made some inquiry concerning the accident. The court rightly held that appellant failed to prove notice. The mere choice of probabilities does not constitute evidence and will not be submitted to the jury. Nor does the placing of inference on inference or presumption on presumption constitute a sufficient basis for the determination of facts. United States v. Ross, 92 U.S. 281, 283, 23 L.Ed. 707; Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Parker v. Gulf Refining Co., 6 Cir., 80 F.2d 795; The Cabo Hatteras, D.C., 5 F.Supp. 725. Appellant, however, contends that by making an investigation of the accident, Standard waived the requirement for notice and is now estopped from asserting it as a defense. For the purpose of this discussion it may be assumed that the investigation that was made was at the instigation of Standard. Strictly speaking, the inability of a party to an action to assert as a defense a right given by a contract does not spring from a waiver thereof, but from estoppel resulting from a waiver. Mere failure to insist on a right or taking affirmative steps which would not be required until the other party to the contract had performed a condition required of him will not of itself work an estoppel. It is only when the waiver causes the other party to the contract to change his position to his 'detriment, which he would not have done save for his reliance upon the conduct of the other party, that an estoppel results. 26 C.J., pp. 279, 280, § 351; Vance on Insurance, 451 et seq.; Continental Ins. Co. of New York v. Portwood, 184 Okl. 22, 84 P.2d 435; Leisen v. St. Paul Fire & Marine Ins. Co., 20 N.D. 316, 127 N.W. 837, 30 L.R.A.,N.S., 539; Draper v. Oswego County Fire Relief Ass’n, 190 N.Y. 12, 82 N.E. 755. The general rule is that the mere investigation of a loss under an insurance contract of itself will not obviate the necessity of notice or proof of loss. It is only when such investigation is carried on under such circumstances as to reasonably lead the insured to conclude that nothing more will be required that an estoppel will result, 26 C.J. 403, and this seems to be the rule in Oklahoma. Continental Ins. Co. of New York v. Portwood, supra. Therefore, even if we assume that Standard caused the investigator to make a preliminary investigation it is not estopped from asserting the failure of the company to give notice as a defense against liability on the policy, for it conclusively appears that neither the company nor any officer thereof had any knowledge of the investigation. The policy required that immediate written notice be given of any accident with the attendant circumstances surrounding it. This the Company failed, to do. How could it have been misled into failure to give notice by an investigation of which it had no knowledge? The judgment is affirmed. Herein called Standard. Herein called the Company. Herein called the appellant. Question: What is the state of the first listed state or local government agency that is an appellant? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_genapel1	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. KALIS v. LEAHY. No. 10757. United States Court of Appeals District of Columbia Circuit. Argued Dec. 13, 1950. Decided Jan. 31, 1951. Writ of Certiorari Denied May 7,1951. See 71 S.Ct. 797. Mr. Leo A. Rover, Washington, D. C., with whom Mr. Clarence G. Pechacelc, Washington, D. G, was on the brief, for appellant. Mr. James F. Reilly, Washington, D. G, with whom Mr. Eugene B. Sullivan, Washington, D. G, was on the brief, for appellee. Before WILBUR K. MILLER, BAZELON, and FAHY, Circuit Judges. FAHY, Circuit Judge. Rose Kalis, the appellant, brought an action in the District Court against the executor of the estate of Annie A. Kilroy, deceased, for services as companion and nurse. She alleged the decedent promised to take care of her, implying that some provision to that effect would be made in her will, which was not done. The trial judge granted the motion of the executor to dismiss the complaint on the ground the action was barred by § 18-518 of the D.C. Code (1940), as amended June 24, 1949, because not filed within three months after the executor had rejected the claim. The section in question provides that when a claim is exhibited against an executor which he thinks his duty requires him to dispute or reject he may retain assets proportioned to the -amount of the claim. If within nine months (as the statute read prior to June 24, 1949), or three months (as the amendment of that date provides), after he disputes or rejects the claim suit is not commenced upon it, “the creditor shall b’e forever barred; * * The effect is that if a claimant desires the executor to hold assets for his claim he must follow this special procedure. Otherwise he may sue. within three years. The relevant, chronology, set forth in the margin, shows that appellant’s action was filed within nine but not within three months after rejection of the claim. We think it clear the cause of action arbse upon the death of the decedent on September 19, 1948. This is stated in a negative manner in West v. Bauduit, 1929, 59 App.D.C. 74, 75, 33 F.2d 370, 371, as follows: “ * * * The action for services must be brought within three years from the time the services were performed, but if the agreement was that they were to be compensated for by a provision in the will, then no cause of action arose until the death of the decedent, * * In Tuohy v. Trail, 1901, 19 App.D.C. 79, 88, it is said that where it was understood by both parties that compensation for services should be made by a will and this is not done, an action lies to recover their value. It is implicit in this statement that the action accrues when the party dies without making compensation by will, especially as the court goes on to say that if such a contract be found by the jury the statute of limitations would -not bar the action, meaning, no doubt, that the statute would not begin to run until the death. We construe Clawans v. Sheetz, 1937, 67 App.D.C. 366, 92 F.2d 517, to like effect. There this court in holding that the limitation of nine months was not applicable to a suit on a rejected claim which had not been authenticated, said that the three-year general period applied in such a case. Rejection of the claim, which sets in motion the running of the shorter period within which suit must be filed under the special procedure, does not fix the time of accrual of the cause of action itself. Whether this shorter or the three-year period applies, the claimant would be pursuing the same cause of action, namely, the claim against the estate for services rendered the decedent. We have, then, a case in which, after the cause of action had arisen, but before the choice of procedure had been acted upon, 'Congress reduced the time within which a suit could be filed under the special procedure which was subsequently followed. There is no constitutional barrier which precludes holding this shortened period applicable to a claim in existence when the change was enacted, provided a reasonable time remained within which to-sue. Terry v. Anderson, 1877, 95 U.S. 628, 633, 24 L.Ed. 365. The question is simply whether Congress intended the amendment to apply to claims then existing against estates under administration when Congress intervened. The general rule which aids the courts in arriving át the intent of Congress as to the time a statute takes ef-. feet in relation to conditions when it is enacted is that it will not be given retroactive effect unless this is required by-explicit language or necessary implication. United States v. St. Louis, S. F. & T. Ry. Co., 1926, 270 U.S. 1, 3, 46 S.Ct. 182, 70 L.Ed. 435; U. S. Fidelity & Guaranty Co. v. U. S. for Use and Benefit of Struthers Wells Co., 1908, 209 U.S. 306, 314, 28 S.Ct. 537, 52 L.Ed. 804. To apply the June 24, 1949, amendment to this case, however, would not in any precise sense offend this rule were the claim considered apart from the fact that administration of the estate had begun; for while it is true the cause of action had arisen when the amendment was approved, the claim had not been presented or rejected. Therefore, the period of limitation, whether three or nine months, had not then begun to run. Administration of the estate, however, had begun. This is important because the amendment in question is but one of several made by the same statute. Eight periods of time, other than the one now involved, and all having to do with the administration of estates, are affected by the amending statute; seven periods are shortened and one appears for the first time. An examination of these other amendments discloses that they deal with periods which begin to run either from the death of the decedent, the appointment of the personal representative, or the service of summons upon an absent executor. To apply them to estates already in the process of administration would be giving a retroactive effect — the shortening of periods which had begun to run — not required by “explicit language or by necessary implication.” Furthermore, it would make such application of very questionable validity in some instances because of the quite limited period left for action. Indeed, in some cases conformance might be impossible. In these circumstances it is reasonably clear that Congress did not purpose any general application of the amending statute to estates in process of administration. The problem therefore narrows to whether we should isolate the amendment of § 18-518 from the other eight, and hold that Congress intended it to apply to such estates but that its companion amendments should not. The answer is not clear; but in view of the general intent of the Act as a whole, considered with the substantial reduction from nine to three months made in § 18-518, we do not think we should attribute to Congress an unexpressed, purpose to differentiate with respect to this one amendment. In view of the uncertainty as to the legislative intent preference should be given by the court to a construction which precludes application of the particular amendment to claims against estates in process of administration at the time of its enactment. This gives effect to the amendment of § 18-518 in a manner which is consistent with the general intent of Congress evidenced by the amending statute as a whole. Accordingly, the nine months limitation governs this case and the suit was brought within time. Reversed. . Act of June 24, 1949, c. 242, 63 Stat. 268. . September 19, 1948......................Death of Annie A. Kilroy. October 5, 1948..........................Admission of decedent’s last -will and testament to probate; qualification of appellee as executor. June 24, 1949............................Amendment of § 18-518 of the D. O. Code (1940), reducing the period for bringing suit on rejected claims from 9 months to 3 months. October 27, 1949.........................Rejection of appellant’s claim by appellee as executor. May 12, 1950............................. .The commencement of the instant suit by appellant in the District Court. . It is not necessary to consider a variation of this proposition which might result from the fact that an action could not reach the appropriate defendant until appointment of an executor or administrator. . They are summarized as follows: (a) In § 18-501 which provides that on the death of a person not domiciled in the District of Columbia so much of his estate therein as may be necessary to pay claims of creditors there domiciled shall be subject to administration of the probate court, the time within which such claims shall be prosecuted is reduced from one year to six months; (b) the time prescribed by § 20-806 within which an executor, who was not present at probate but is within the District, must appear, or else administration may be otherwise granted, is reduced from twenty to five days when he is summoned, and from thirty to ten days when he is given notice by publication; (c) the time prescribed by § 18-401 within which an executor, administrator or collector, after his appointment, shall make true inventory, is reduced from three to two months; (d) the time specified in § 18-407 within which an executor or administrator shall return a new inventory, or acknowledges receipt of the articles contained in the inventory filed by a collector, is reduced from three to two months; (e) the provision of § 18-526 that an executor or administrator who, after one year, has paid away assets to discharge just claims shall not be answerable for any claim of which he had no knowledge or notice by its exhibition legally authenticated, is changed to a period of six months; and the provision of the same section conditioning the above by requiring that at least six months before he shall make distribution he shall cause the specified advertisement to be published, is changed by reducing the period to three months; and (f) the requirement of § 20-601 that every executor and administrator shall render to the probate court his first account within twelve months from the date of his letters is amended by adding the proviso that said account may be rendered six months from such date. . Cf. U. S. Fidelity & Guaranty Co. v. U.S. for Use and Benefit of Struthers Wells Co., supra, where the Supreme Court, when faced by an analogous problem of “splitting"’ the intent of Congress, held that the provisions of the amendatory statute there involved should not be construed to apply retroactively as to one matter and prospectively as to others. 209 U.S. at page 316, 28 S.Ct. 537. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_respondentstate	42	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. SIPUEL v. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA et al. No. 369. Argued January 7-8, 1948. Decided January 12, 1948. Thurgood Marshall and Amos T. Hall argued the cause for petitioner. With them on the brief was Frank D. Reeves. Fred Hansen, First Assistant Attorney General of Oklahoma, and Maurice H. Merrill argued the cause for respondents. With them on the brief was Mac Q. Williamson, Attorney General. Briefs of amici curiae urging reversal were filed by Robert W. Kenny, O. John Rogge, and Andrew D. Weinberger for the National Lawyers Guild; and Arthur Garfield Hays and Osmond K. Fraenkel for the American Civil Liberties Union. Per Curiam. On January 14, 1946, the petitioner, a Negro, concededly qualified to receive the professional legal education offered by the State, applied for admission to the School of Law of the University of Oklahoma, the only institution for legal education supported and maintained by the taxpayers of the State of Oklahoma. Petitioner’s application for admission was denied, solely because of her color. Petitioner then made application for a writ of mandamus in the District Court of Cleveland County, Oklahoma. The writ of mandamus was refused, and the Supreme Court of the State of Oklahoma affirmed the judgment of the District Court. 199 Okla. 36, 180 P. 2d 135. We brought the case here for review. The petitioner is entitled to secure legal education afforded by a state institution. To this time, it has been denied her although during the same period many white applicants have been afforded legal education by the State. The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938). The judgment of the Supreme Court of Oklahoma is reversed and the cause is remanded to that court for proceedings not inconsistent with this opinion. The mandate shall issue forthwith. Reversed. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
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 HILL, ATTORNEY GENERAL OF TEXAS v. STONE ET AL. No. 73-1723. Argued January 14, 1975 Decided May 12, 1975 Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun,. and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Stewart, J., joined, post, p. 302. Douglas, J., took no part in the consideration or decision of the case. David M. Kendall, First Assistant Attorney General of Texas, argued the cause for appellant. On the brief were John L. Hill, Attorney General, pro se, Larry F. York, former First Assistant Attorney General, and Mike Willatt and G. Charles Kobdish, Assistant Attorneys General. Don Gladden argued the cause for appellees. With him on the brief for appellees Stone et al. was Marvin Collins. S. G. Johndroe, Jr., filed a brief for appellees city of Fort Worth et al. Edward W. Dunbar filed a brief for El Paso County Junior College District as amicus curiae urging affirmance. Briefs of amici curiae were filed by James F. McKibben, Jr., for the city of Corpus Christi; by Marshall Boykin III for William O. Harrison, Jr., et al.; and by Joe Purcell, Manly W. Mumford, Fred H. Rosenfeld, and Harold B. Judell for the city of Phoenix et al. Mr. Justice Marshall delivered the opinion of the Court. This case requires us once again to consider the constitutionality of a classification restricting the right to vote in a local election. Appellees, residents of Fort Worth, Tex., brought this action to challenge the state and city laws limiting the franchise in city bond elections to persons who have made available for taxation some real, mixed, or personal property. A three-judge District Court held that this restriction on suffrage did not serve any compelling state interest and therefore violated the Equal Protection Clause of the Fourteenth Amendment. Stone v. Stovall, 377 F. Supp. 1016 (ND Tex. 1974). We granted , a partial stay of the District Court’s order pending disposition of the appeal. 416 U. S. 963 (1974). We subsequently noted probable jurisdiction. 419 U. S. 822 (1974). I The Texas Constitution provides that in all municipal elections “to determine expenditure of money or assumption of debt,” only those who pay taxes on property in the city are eligible to vote. Tex. Const. Art. 6, § 3. In addition, it directs that in any election held “for the purpose of issuing bonds or otherwise lending credit, or expending money or assuming any debt,” the franchise shall be limited to those qualified voters “who own taxable property in the . . . district . . . where such election is held,” and who have “duly rendered the same for taxation.” § 3a. The implementing statutes impose the same requirements, adding that to qualify for voting a resident of the district holding the election must have “rendered” his property for taxation to the district during the proper period of the election year, and that he must sign an affidavit indicating that he has done so. Tex. Elec. Code §§ 5.03, 5.04, 5.07 (1967 and Supp. 1974-1975). The Fort Worth City Charter further provides that the city shall not issue bonds unless they are authorized in an election of the “qualified voters who pay taxes on property situated within the corporate limits of the City of Ft. Worth.” Charter of the City of Fort Worth, c. 25, § 19. In 1969, after our decisions in Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969), and Cipriano v. City of Houma, 395 U. S. 701 (1969), the Texas Attorney General devised a “dual box election procedure” to be used in all the State’s local bond elections. Under this procedure, all persons owning taxable property rendered for taxation voted in one box, and all other registered voters cast their ballots in a separate box. The results in both boxes were tabulated, and the bond issue would be deemed to have passed only if it was approved by a majority vote both in the “renderers’ box” and in the aggregate of both boxes. This scheme ensured that the bonds would be safe from challenge even if the state-law restrictions on the franchise were later held unconstitutional. On April 11, 1972, the city of Fort Worth conducted a tax bond election, using the dual-box system to authorize the sale of bonds to improve the city transportation system and to build a city library. Since the state eligibility restrictions had previously been construed to require only that the prospective voter render some property for taxation, even if he did not actually pay any tax on the property, Montgomery Independent School District v. Martin, 464 S. W. 2d 638 (Tex. 1971), all those who signed an affidavit indicating that they had rendered some property were permitted to vote in the “renderers’ box.” Of the 29,000 voters who participated in the bond election, approximately 24,000 voted as Tenderers and 5,000 as nonrenderers. The transportation bond proposal was approved in both boxes and in the aggregate. The library bonds, however, were less well received. Although the library bonds were approved by a majority of all the voters, they were defeated in the Tenderers’ box, and were therefore deemed not to have been authorized. The appellees, three of whom had voted as nonrenderers, then filed this action in the United States District Court for the Northern District of Texas, claiming that the partial disfranchisement of persons not rendering property for taxation denied them equal protection of the laws. A three-judge District Court was convened; it heard argument, and on March 25, 1974, it entered judgment for the appellees. The court declared the relevant provisions of the Texas Constitution, the Texas Election Code, and the Fort Worth City Charter unconstitutional “insofar as they condition the right to vote in bond elections on citizens’ rendering property for taxation.” 377 F. Supp., at 1024. Although the court ruled that its decree would not make invalid any bonds already authorized or any bond elections held before the date of the judgment, it ordered the city defendants to count the ballots of those who had voted in the nonrenderers’ box, and it enjoined any future restriction of the franchise in state bond elections to those who have rendered property for taxation. While all three judges concurred in the judgment, each member of the panel wrote separately. Judge Thorn-berry concluded that the Texas scheme was invalid because it divided the otherwise eligible voters into two classifications — renderers and nonrenderers — and that the disfranchisement of those who did not render property for taxation violated the Equal Protection Clause. Judge Woodward concurred in the result on the ground that the rendering requirement was tantamount to a requirement of property ownership, which he concluded was impermissible under this Court’s decision in Harper v. Virginia Board of Elections, 383 U. S. 663 (1966). Judge Brewster concurred in the judgment, but only because he thought the case was controlled by our decision in City oj Phoenix v. Kolodziejski, 399 U. S. 204 (1970), where we held invalid a statute restricting the franchise in a general obligation bond election to real property owners. II Appellant, the Attorney General of Texas, argues that none of this Court’s cases draws into question a voting restriction of the sort used in this election. The eligibility scheme does not impose a wealth restriction on the exercise of the franchise, the appellant contends, and any classification that it does create is reasonable and should be upheld on that basis. A In Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969), we held that in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack. The appellant in Kramer challenged a New York statute that limited eligibility to vote in local school board elections to persons who owned or leased taxable real property in the school district, or who had children enrolled in the public schools. We expressed no opinion in Kramer whether a State might in some circumstances limit the franchise to those “primarily interested” in the election, but we held that the New York statute had impermissibly excluded many persons with a distinct and direct interest in the decisions of the school board, while at the same time including others with no substantial interest in school affairs. The fact that the school district was supported by a property tax did not mean that only those subject to direct assessment felt the effects of the tax burden, and the inclusion of parents would not exhaust the class of persons interested in the conduct of local school affairs. In Cipriano v. City of Houma, 395 U. S. 701 (1969), decided the same day, we invalidated a Louisiana statute limiting the franchise in local revenue bond elections to the “property taxpayers” of the district. As in Kramer, the city had failed to prove that under its classification all those excluded from voting were in fact substantially less interested or affected than those permitted to vote. Id., at 704. The bonds in Cipriano were intended to finance extension and improvement of the city's utility system. We pointed out that the operation of a utility system affects property owners and nonproperty owners alike, and since those not included among the eligible voters often use the utility services, they might well feel the effect of outstanding revenue bonds through the utility rates they would be required to pay. The next Term, in City of Phoenix v. Kolodziejski, supra, we ruled unconstitutional a similar restriction of the franchise to real property taxpayers in a general obligation bond issue. The interests of property owners and nonproperty owners in a general obligation bond issue, we held, were not sufficiently disparate to justify excluding those owning no real property. The residents of the city, whether property owners or not, had a common interest in the facilities that the bond issue would make available, and they would all be substantially affected by the outcome of the election, both in terms of the benefits provided and the obligations incurred. Under the Phoenix bond arrangement, we noted that some of the debt service would be paid out of revenues other than property tax receipts, so nonproperty owners would be directly affected to some extent. We added, however, that even where the municipality looks only to property tax revenues for servicing general obligation bonds, the franchise could not legitimately be restricted to real property owners: “Property taxes may be paid initially by property owners, but a significant part of the ultimate burden of each year’s tax on rental property will very likely be borne by the tenant rather than the landlord since . . . the landlord will treat the property tax as a business expense and normally will be able to pass all or a large part of this cost on to the tenants in the form of higher rent.” 399 U. S., at 210. In addition, we noted that property taxes on commercial property would normally be treated as a cost of doing business and would “be reflected in the prices of goods and services purchased by nonproperty owners and property owners alike.” Id., at 211. The basic principle expressed in these cases is that as long as the election in question is not one of special interest, any classification restricting the franchise on grounds other than residence, age, and citizenship cannot stand unless the district or State can demonstrate that the classification serves a compelling state interest. See Kramer, 395 U. S., at 626-627; Cipriano, 395 U. S., at 704. The appellant’s claim that the Fort Worth election was one of special interest and thus outside the principles of the Kramer case runs afoul of our decision in City of Phoenix v. Kolodziejski, supra. In the Phoenix casé, we expressly stated that a general obligation bond issue— even where the debt service will be paid entirely out of property taxes as in Fort Worth — is a matter of general interest, and that the principles of Kramer apply to classifications limiting eligibility among registered voters. In making the alternative contentions that the “rendering requirement” creates no real “classification,” or that the classification created should be upheld as being reasonable, the appellant misconceives the rationale of Kramer and its successors. Appellant argues that since all property is required to be rendered for taxation, and since anyone can vote in a bond election if he renders any property, no matter how little, the Texas scheme does not discriminate on the basis of wealth or property. Our cases, however, have not held or intimated that only property-based classifications are suspect; in an election of general interest, restrictions on the franchise of any character must meet a stringent test of justification. The Texas scheme creates a classification based on rendering, and it in effect disfranchises those who have not rendered their property for taxation in the year of the bond election. Mere reasonableness will therefore not suffice to sustain the classification created in this case. B The appellant has sought to justify the State’s rendering requirement solely on the ground that it extends some protection to property owners, who will bear the direct burden of retiring the city’s bonded indebtedness. The Phoenix case, however, rejected this analysis of the “direct” imposition of costs on property owners. Even under a system in which the responsibility of retiring the bonded indebtedness falls directly on property taxpayers, all members of the community share in the cost in various ways. Moreover, the construction of a library is not likely to be of special interest to a particular, well-defined portion of the electorate. Quite apart from the general interest of the library bond election, the appellant’s contention that the rendering requirement imposes no real impediment to participation itself undercuts the claim that it serves the purpose of protecting those who will bear the burden of the debt obligations. If anyone can become, eligible to vote by rendering property of even negligible value, the rendering requirement can hardly be said to select voters according to the magnitude of their prospective liability for the city’s indebtedness. The appellee' city officials argue that the rendering qualification furthers another state interest: it encourages prospective voters to render their property and thereby helps enforce the State’s tax laws. This argument is difficult to credit. The use of the franchise to compel compliance with other, independent state objectives is questionable in any context. See United States v. Texas, 252 P. Supp. 234, 253-254 (WD Tex.), aff’d, 384 U. S. 155 (1966). It seems particularly dubious here, since under the State’s construction of the rendering requirement, an individual will be given the right to vote if he renders any property at all, no matter how trivial. Those rendering solely to earn the right to vote in bond elections may well render property of minimal value, in order to qualify for voting without imposing upon themselves a substantial tax liability. The rendering requirement thus seems unlikely to have any significant impact on the asserted state policy of encouraging each person to render all of his property. In sum, the Texas rendering requirement erects a classification that impermissibly disfranchises persons otherwise qualified to vote, solely because they have not rendered some property for taxation. The Phoenix case establishes that Fort Worth’s election was not a “special interest” election, and the state interests proffered by-appellant and the city officials fall far short of meeting the “compelling state interest” test consistently applied in Kramer, Cipriano, and Phoenix. Ill In order to avoid the possibility of upsetting previous bond elections in the State, the District Court declined to give retroactive effect to its judgment. We have followed the same course in our prior cases dealing with voting classifications in bond elections, see Cipriano, 395 U. S., at 706; Phoenix, 399 U. S., at 213-215, and we agree with the District Court’s determination not to give its ruling retroactive effect. Since the portion of the District Court’s judgment invalidating the state constitutional and statutory provisions has been in full effect since that time, and since some local bond elections may subsequently have been conducted in reliance on that judgment, we hold that the District Court’s ruling should- apply only to those bond authorization elections that were not final on the date of the District Court’s judgment. As to other jurisdictions that may have restrictive voting classifications similar to those in Texas, we hold that our decision should not apply where the authorization to issue the securities is legally complete as of the date of this decision. Affirmed. Mr. Justice Douglas took no part in the consideration or decision of this case. To “render” property for taxation means to list it with the tax assessor-collector of the taxing district in question. Property is “rendered” for taxation either when the owner reports it or when the tax assessor-collector places it on the tax rolls himself. Taxable property includes all real, mixed, and personal property with limited exemptions, such as $3,000 for homesteads and $250 for household furnishings. Tex. Const. Art. 8, § 1. Although state law requires taxpayers to render all their taxable property, Tex. Rev. Civ. Stat. Arts. 7145, 7152 (1960 and Supp. 1974-1975), there is no penal sanction for failing to do so voluntarily. Of the five named appellees, three voted as nonrenderers and two as rendering property owners. They sought to represent the class of all persons who voted in the election in favor of the library bonds. The District Court certified the class as proper under Fed. Rule Gv. Proc. 23 (b) (2). The city of Fort Worth and various city officials, who were defendants below, are listed as appellees in this Court, but they support the appeal and have filed a brief urging reversal, and are not included in subsequent references to appellees. The effect of the dual-box procedure was that the nonrenderers could help defeat a bond issue, but they could not help pass it. If their votes, added to the votes of the Tenderers, produced a majority against the bonds, the bonds would not be issued,, even if the Tenderers favored them. But if the Tenderers opposed the bonds, the nonrenderers’ votes would be of no effect, even if they produced an overall majority in favor of the bond issue. The Attorney General was joined as a defendant because Texas law requires that he certify the validity of any municipal bond issue. Tex. Rev. Civ. Stat. Arts. 709d (1964 and Supp. 1974-1975), 4398 (1966). We answered that question in Salyer Land Co. v. Tulare Water District, 410 U. S. 719 (1973). In that case, we held that a water district created for the purpose of acquiring, storing, and distributing water for agricultural purposes could constitutionally have a board of directors selected in an election in which votes were allocated according to the assessed value of each voter’s land. Because of its “special limited purpose and . . . the disproportionate effect of its activities on landowners as' a group,” id., at 728, the Court held that the water district election was of sufficient “special interest” to a single group that the franchise could constitutionally be denied to others. In Louisiana, as in Texas, personal property as well as real property was subject to taxation, and a “property taxpayer” could include a person with only personalty. The administrative practice was to tax only real property, however, so the effect was that in reality “property taxpayer” meant “real property taxpayer.” See Stewart v. Parish School Board, 310 F. Supp. 1172, 1173 n. 3 (ED La.), aff’d, 400 U. S. 884 (1970). As a practical matter, under Texas’ scheme of tax assessment and collection, the rendering requirement may in effect create a property-related classification. Appellees’ counsel informed us at oral argument that Fort Worth, like other communities in Texas, makes no affirmative effort to tax property other than realty and business personalty. Tr. of Oral Arg. 26-27. Residents are free to “render” other forms of personalty, but this is apparently seldom done. See Yudof, The Property Tax in Texas Under State and Federal Law, 51 Tex. L. Rev. 885, 889-890 (1973). As a result, in Fort Worth those with realty and business personalty are automatically eligible to vote as “renderers,” while other voters must take the somewhat unusual step of voluntarily “rendering” their property for taxation. When he does so, the taxpayer affirms that he has rendered all his property, and that the valuation of the property is correct. Tex. Rev. Civ. Stat. Arts. 7164, 7184 (1960). This argument is similar to the one made by the State of Georgia in defense of its “freeholder” requirement for membership on county boards of education. Turner v. Fouche, 396 U. S. 346, 363-364 (1970). The State there claimed that the freeholder requirement imposed no real burden, since a candidate would qualify if he owned even a single square inch of land. We concluded that if that was the case it was difficult to conceive that the requirement served any rational state interest whatsoever. Appellant relies on this Court’s decisions in McDonald v. Board of Election, 394 U. S. 802 (1969), and Rosario v. Rockefeller, 410 U. S. 752 (1973), in defense of the classification created by Texas law in this case. In McDonald, however, the only issue before the Court was whether pretrial detainees in Illinois jails were unconstitutionally denied absentee ballots. The Court expressly noted that there was nothing in the record to indicate that the challenged Illinois statute had any impact on the appellants’ exercise of their right to vote. See 394 U. S., at 807-809. Any classification actually restraining the fundamental right to vote, the Court noted, would be subject to close scrutiny. In Rosario, the Court upheld a neutral requirement that a voter register a party preference 30 days in advance of the general election in order to be eligible to participate in the succeeding primary election. Because the registration requirement served the “legitimate and valid state goal” of “preservation of the integrity of the electoral process,” 410 U. S., at 761, and because it imposed no special burden on any class before the Court, see id., at 759 n. 9, the Court held that the time limitation on registration did not violate either the Equal Protection Clause or the First and Fourteenth Amendment right of association. By contrast, the Texas scheme imposes a restriction on the franchise having no perceptible purpose or effect in preserving the integrity of the electoral process; instead, it excludes a portion of the electorate for failing to comply with a wholly independent state policy. The partial stay of the District Court’s judgment was granted only to the extent that the judgment below had prohibited the use of the dual-box election procedure. 416 U. S. 963. There may be no such jurisdictions, at least where bond election voting qualifications are governed by statewide statutes and constitutional provisions. We are told that in the 15 States besides Texas that restricted the franchise to taxpayers in some fashion at the time the Phoenix case was decided, all qualified voters are now permitted to participate in bond elections. Brief for City of Phoenix, Ariz., et al. as Amici Curiae 19. In addition to the 13 States referred to in City oj Phoenix v. Kolodziejski, 399 U. S. 204, 213 n. 11 (1970), Nevada and Wyoming utilized a dual-box election procedure much like Texas’, but in both cases that procedure has been abandoned. See Nev. Laws 1971, c. 49; Wyo. Laws 1973, c. 251. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appnonp	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 "groups and associations". 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. Samuel ROSENCRANZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Anthony DiPIETRO, Defendant, Appellant, v. UNITED STATES of America, Appellee. Nos. 6594, 6611. United States Court of Appeals First Circuit. Heard Dec. 6, 1965. Decided Feb. 7, 1966. Joseph J. Balliro, Boston, Mass., for appellant Samuel Rosencranz. Casper Tevanian, Portland, Me., for appellant Anthony DiPietro. William E. McKinley, U. S. Atty., with whom David G. Roberts, Asst. U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. These appeals arise from the joint trial and conviction of two alleged conspirators indicted for the operation of an illegal still in violation of federal internal revenue laws. The critical issue is whether there was probable cause to issue a search warrant. I On March 24, 1962, prior to 3 a. m., Richard K. Weller, Investigator-in-Charge of a branch office of the Alcohol Tax Division of the U. S. Treasury Department, presented and executed before a U. S. Commissioner an affidavit for a search warrant, alleging that he had reason to believe that on certain farm premises on Ash Swamp Road in Scarborough, Maine, were being concealed mash, distillation apparatus, and non-tax paid alcohol, in violation of 26 U.S.C. § 5601. The warrant was issued and, at 5:45 a. m., the same day, Weller and other officers entered the barn on the premises, found a still, seized equipment and supplies used in the making of alcohol, and arrested two men (not appellants) found at the site. The validity of the search warrant was attacked by appellants in motions to suppress the evidence resulting from the search. The government, in turn, challenged their right to attack on the dual grounds that neither the persons nor the property affected by the search fall within the protection of the Fourth Amendment. After evidence and argument, the district court denied the motions in an opinion dated May 19, 1965, D.Me., 241 F.Supp. 933. As to standing, we hold that appellants can invoke the Fourth Amendment on the undisputed fact that appellant DiPietro was the legal owner of the premises. While he was as absentee, reluctant, unknowledgeable, and uninterested an owner as may be imagined, he was still the only holder of legal title to the premises. He was also the owner of such distilling apparatus as, under the applicable law as to fixtures, had become part of the real estate. And we have seen no authority for the proposition that the owner of premises who has not given exclusive use to another does not have standing. See Jones v. United States, 1960, 362 U.S. 257, 265, 80 S.Ct. 725, 4 L.Ed.2d 697. If DiPietro has standing, then, under McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153, appellant Roseneranz also shares in the shelter of the Fourth Amendment. That such an absentee holder of legal title as appellant DiPietro should have standing to invoke the Fourth Amendment does not offend us as creating constitutional rights by “subtle distinctions developed in the law of real property”, as government counsel argues. As this case demonstrates, the purchase and ownership of real property with very little more can be significant links involving the owner in the chain of an alleged conspiracy. It does not seem unfair to allow the fact of ownership, which is used by the government against a defendant, to be used by that defendant to invoke constitutional rights. The government also contends that the premises searched — the barn-do not come within the protection of the Fourth Amendment. This amendment speaks of the “houses” of persons, which word has been enlarged by the courts to include the “curtilage” or ground and buildings immediately surrounding a dwelling, formerly usually enclosed. The reach of the curtilage depends on the facts of a case. In this case the government points out that appellants have not supplied us with more than the most meager facts (see footnote 1, supra). The only additional factual description is as follows. The Treasury agent who led the search said, “it was a small farm with dwelling house and barn to the left as you faced the premises”. He also testified that tracks of vehicles and footprints were visible on the snow, leading to both house and barn; he decided to enter the barn first because the signs of traffic were somewhat heavier. Other witnesses said there was a driveway between the barn and the dwelling house. This suggests propinquity and absence of separating barriers. While the evidence before us is sparse, it is at least as persuasive as that in Walker v. United States, 5 Cir., 1955, 225 F.2d 447, where a barn was held within the curtilage, although it was seventy to eighty yards from a house, and was surrounded by a fence. See also Taylor v. United States, 1931, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951; United States v. Mullin, 4 Cir., 1964, 329 F.2d 295. We hold that the premises searched were within the coverage of the Fourth Amendment. The search warrant is attacked for the following alleged defects in the underlying affidavit: that anonymous information is not an adequate basis; that the affiant was not found qualified to know the odor of mash; that the affiant did not identify the odor of mash as emanating from the premises; and that the times of receipt by the affiant of information from his informant and of his detection of the odor were not stated in the affidavit. We shall consider these arguments against the background of constitutional policy and guidelines to carry out that policy, which have evolved as the courts have wrestled with the problem of respecting both the constitutional rights of individuals and the reasonable needs of law enforcement. The policy is to encourage officers of the law to seek to the fullest extent feasible the objective judgment of a magistrate on the probability that a crime is being committed before permitting entry on the property of private citizens. The device of this intervening step between clues and search is calculated to substitute the inferences of a neutral and detached magistrate for the inferences of a committed officer in the heat of ferreting out crime. Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436. This policy, in the interests of the civil liberties of all the people protected by the Fourth Amendment, is bulwarked by rather precise supporting guidelines, which may bear heavily on individual defendants. These guidelines include the following: evidence need be only so much as to persuade a man of reasonable caution to believe a crime is being committed, Brinegar v. United States, 1949, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543; the finding of “probable cause”, while demanding more than mere suspicion, Draper v. United States, 1959, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327, requires less evidence than would justify conviction, Locke v. United States, 1813, 7 Cranch 339, 348, 3 L.Ed. 364, and less than would justify an officer in making a search without a warrant, Johnson v. United States, supra, 333 U.S. at 13, 68 S.Ct. 367; the evidence itself need not be legally competent in a criminal trial, Draper v. United States, supra, 358 U.S. at 311, 79 S.Ct. 329, and may in fact be hearsay, Jones v. United States, supra, 362 U.S. at 272, 80 S.Ct. 725, so long as the magistrate is informed of some underlying circumstances supporting the affiant’s conclusion and his belief that any informant involved was credible or his information reliable, Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; the commissioner is entitled to draw reasonable inferences from the facts contained in the affidavit based on his experience in such matters, Irby v. United States, 1963, 114 U.S.App.D.C. 246, 314 F.2d 251, 253, cert. denied, 374 U.S. 842, 83 S.Ct. 1900, 10 L.Ed.2d 1064, while only the information in the affidavit is relevant in reviewing the magistrate’s judicial action issuing a warrant, United States v. Casino, 2 Cir., 1923, 286 F. 976, such an affidavit must be tested with a commonsense, nontechnical, ungrudging, and positive attitude, United States v. Ventresca, 1965, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d, 684; and, finally, the commissioner’s finding “is itself a substantial factor”, United States v. Ramirez, 1960, 2 Cir., 279 F.2d 712, 716, cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74, and in marginal cases, where there is doubt whether an affidavit demonstrates the existence of probable cause, the resolution should be “largely determined by the preference to be accorded to warrants”, United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. at 746. Following this constitutional policy and these judicial guidelines, particularly as urged by Ventresca, we shall now consider the alleged defects in the affidavit. We are not troubled by affiant’s receipt of information from an anonymous informant. The case before us is, in this respect, stronger than both Aguilar and Jones, where the only basis for the warrant was hearsay information. In this ease the hearsay evidence is buttressed by the personal observation of the affiant. It is analogous to Draper, where hearsay information which had no earmarks of credibility was confirmed by the observations of the officer. Nor are we concerned by the state of the evidence before the magistrate as jo. the odor of mash outside the premises. The affiant in this case, while described in the affidavit as a “Criminal Investigator”, was actually the Investigator-in-Charge of a local office of the Alcoholic Tax Division of the Treasury Department. In either event, such credentials and the distinctive odor of mash have passed the surveillance of many courts. See, e. g., Monnette v. United States, 5 Cir., 1962, 299 F.2d 847. Cf. Chapman v. United States, 1961, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Johnson v. United States, supra, 333 U.S. at 13, 68 S.Ct. 367; Steeber v. United States, 10 Cir., 1952, 198 F.2d 615, 33 A.L.R.2d 1425. Indeed, we have seen no case standing for the proposition that a magistrate was unreasonable in considering a person in affiant’s position qualified to detect the odor of mash. But appellants go beyond the qualifications of the affiant and the distinctive nature of the odor, and say that a mere allegation that the odor was detected “outside the premises” was defective in failing to say that the odor “emanated from the premises”. In the case before us, the magistrate could have reasonably given weight to two factors. The first is that the premises described in the warrant were a house and barn on Ash Swamp Road, three-tenths of a mile from an intersection. He could conclude that the area was rural and sparsely populated. The second is that the odor was described as a “strong” one. The magistrate could therefore properly conclude that the odor came from the premises described rather than from adjoining property. This was not a congested metropolitan area, where odors could conceivably originate in any one of a number of dwellings. In Monnette v. United States, supra, 299 F.2d at 849 n. 3, an affidavit was upheld which said, “ * * * I distinctly smelled the odor of fermenting mash emanating from these premises.” To make much of the words “fermenting” and “emanating from” would be to engage in the “elaborate specificity” enjoined by Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741. This brings us to the most serious defect in the affidavit — the absence of any averment as to the time when the affiant received information from his anonymous informant or as to the time when affiant detected the odor of mash. Nor is there anything in the affidavit which hints of time except the use of the present tense in connection with the informant’s report to affiant. There is little question but that, before Ventresca, supra, this defect would have been fatal. We summarize the authorities in the margin. The very fact that there are not more cases involving affidavits without an averment of time of observation may be taken as evidence of the wide acceptance by public officers and magistrates of this requirement. The difficult question before us is whether Ventresca compels or permits our upholding of the search warrant in these appeals. The Supreme Court made it perfectly clear that while underlying circumstances must be recited, affidavits should be construed in a commonsense manner and that doubtful cases should be resolved in favor of the warrant. The district court after calling for argument specifically addressed to the implications of Ventresca, and being guided by its reading of that case, denied the motions to suppress evidence. It reasoned that the first fact in the affidavit — the information received from the informant — “must reasonably be construed as speaking as of the date of the affidavit, for the present tense is used”. It reasoned also that the second fact — -the detection of a strong odor of mash — if read in a commonsense way, is elliptically tied both to the present tense in the preceding statement and to the affiant’s allegation in the body of the affidavit that he has reason to believe that the described property “is now being concealed” on the premises. Additionally, three other arguments can be made. First, we observe that the officer, having called at a police barracks between 3 and 3:30 a. m., on March 24, 1962, with the warrant, must have presented his affidavit to the Commissioner between midnight and 2 or 3 a. m. We could reason that no responsible law officer would disturb a magistrate at such an hour on the basis of stale information and observation. Secondly, we could make the distinction between the operation of distilling apparatus plus the strong odor of mash as implying much more of a continuing situation than, for example, would exist in connection with an allegation as to the harboring of stolen property, which might reasonably be in transit and in the process of dispersion. See United States v. Williams, 6 Cir., 1965, 351 F.2d 475. Finally, we could make a distinction between affidavits where the affiant himself has made observations and is available to the magistrate to fill in gaps and where the sole observations are made by another than the affiant. See United States v. Sawyer, E.D.Pa., 1963, 213 F.Supp. 38. But having made as strong a case for the affidavit as we think can be made, we conclude that it is not enough. The present tense is suspended in the air; has no point of reference. It speaks, after all, of the time when an anonymous informant conveyed information to the officer, which could have been a day, a week, or months before the date of the affidavit. To make a double inference, that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time, so long as they reported that whatever information they received was stated to be current at that time. Magistrates would have less opportunity to perform their “natural and detached” function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them. The other arguments are equally unpersuasive. In the instant case we may well say that the early morning application for the warrant reflected a sense of immediacy. But to state the proposition that an after-hours application to. a magistrate can cure the lack of averment as to time of observation is to deflate it as a reasonable ground for believing probable cause exists. For example, were we to rely on this reasoning, a magistrate could, in the future, base his belief that a crime was being committed on the fact that the officer-affiant came to him in a state of breathless excitement, even though at high noon. No more persuasive is the argument that the operation of a still implies continuity, and therefore the likelihood of accuracy of information gathered sometime in the past. If this argument were accepted, there would be relaxed time requirements for all crimes except the most episodic — and these are the very ones to which the law accords an exception to the general requirement of a warrant. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. Such attempts at justification with all the uncertainty involved in reasoning from facts outside the warrant, underscore the wisdom of treating the averments of an affidavit like pleadings in a cause. United States v. Casino, supra. It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed. If the magistrate must observe certain minimum requirements, so must the officer-affiant. He must set forth the basis for the magistrate’s inferences with enough precision so that, if the affidavit is subjected to an attack for lack of probable cause at a subsequent hearing, the trial judge will be ruling on the reasonableness of inferences based on the same underlying circumstances as confronted the commissioner. But suppose a commissioner, on the basis of an affidavit like that in this case, were to infer that both affiant’s information and observation were recent, while at a hearing on a motion to suppress, affiant states that both information and observation were several months old. There would, in fact, have been no basis for issuing the warrant, and yet the affidavit would have been accurate and the affiant would be in no danger of prosecution for its falsity. To create the possibility of ancient information parading beneath the protective mask of a bland, “present tense” warrant would not, in our opinion, be in the interests of proper law enforcement or justice. Nor would the cause of improved judicial administration be served by increased reliance on motions to suppress evidence in order to expose the extent to which an affidavit, while true, might still be misleading. Such deferral of this issue would shift the responsibility of passing on the officer’s judgment from the commissioner to the trial court. To the extent this were done, the function of the warrant-issuing magistrate would wither away to the point of being a vestigial formality. As to the distinction between the standards of judging an affidavit based solely on an informant’s observations and one where the affiant himself made observations and is therefore available for examination by the magistrate, we do not feel it should be carried so far as to dispense with the requirement of reasonably specific time averments.- With a small amendment, both magistrate and officer could have remedied the defect in this case. We see no policy served which would relieve them of this minimal burden. These difficulties lead us to inquire whether the common-sense policy articulated in Ventresca should be construed to relax the long standing, judicially recognized requirement for averments of time of observation of the underlying facts in an affidavit for a search warrant. In that case, this question was farthest from the minds of the Court since there were no fewer than eleven specific allegations of time. The Court was rather dealing with our concern over the problem of distinguishing among af-fiant’s observation, hearsay, and hearsay on hearsay. We doubt that it would wish to weight the scales in favor of the warrant to the extent of abandoning the requirement of some reasonably specific allegation to give a magistrate a basis for deciding whether a crime was still being committed. In no cases relying on Ventresca which have come to our attention has such a major defect been waived. While we might give lip service to principle and yet uphold the warrant as a “doubtful or marginal” case, we do not think this would be a service either to the conduct of law enforcement or the protection of citizens’ rights. Such a disposition of this case would, we feel, needlessly enlarge the area of uncertainty and litigation. We conclude that a combination of undated, conclusory information from an anonymous source and an undated general allegation of personal observation by the affiant, with no other reasonably specific clues to the time of their happening, is inadequate. We do not think this is being hypertechnical, legalistic, or insistent on a requirement of “elaborate specificity once executed by common law pleadings”. Police officers have long been accustomed to the importance of time; to their credit, the overwhelming majority of affidavits have honored the requirement. We are aware of the vast amount of painstaking care invested by the district court in two trials to date. Nevertheless, having carefully considered both precedent and policy, we are constrained to hold the affidavit and therefore the warrant, search, resulting evidence, and judgment invalid. There is one other point raised by appellants which, in the event of another trial, ought to be resolved. Their contention is that the district court erred in admitting a transcript of testimony in a prior trial. This was testimony by one Broderick, a claims adjuster for the New England Telephone and Telegraph Company, that three long distance calls had been made on December 20, 1961 from a gas station in Massachusetts to Ash Swamp Road farm. These calls were relevant to the proof of appellant Rosencranz’s participation in the alleged conspiracy. Subsequent to the prior trial, witness Broderick, admittedly not a permanent custodian of records of calls, had destroyed the records from which he had testified. At the trial below, the transcript of his prior testimony was read. The appellants claim that they have been deprived of the right of cross-examination. But the witness had given the testimony in question at a former trial where parties and issues were the same and where full opportunity for cross-examination was afforded. While we do not condone the action of the witness in destroying records for which he was not responsible, no improper motive has been suggested and the prior testimony was of an objective reportorial nature not ordinarily suspect. We have no hesitation in saying the testimony was admissible. 5 Wigmore, Evidence, §§ 1370, 1371 (3d ed. 1940). Judgment will be entered in each case vacating the judgment of the District Court, setting aside the verdict, and remanding the case for further proceedings not inconsistent with this opinion. . The affidavit reads as follows: AFFIDAVIT FOR SEARCH WARRANT Before Herbert H. Sawyer, 443 Congress Street, Portland, Maine The undersigned being duly sworn deposes and says: That lie has reason to believe that on the premises known as the one and one-half story wooden frame dwelling house and barn, formerly owned by one Bovine, located on the north side of Ash Swamp Road, three-tenths of a mile easterly from the intersection of Lincoln Road and Ash Swamp Road, Scarborough, Maine, in the Southern District of Maine, there is now being concealed certain property, namely mash fit for distillation, apparatus for the purpose of distillation and nontax paid alcohol which are held in violation of Title 26, USC Sec. 5601, (a), (1), (6), (7), (8), (12); And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: 1. Information given anonymously to the Affiant that the aforementioned materials are being held on said premises, 2. The detection of a strong odor of mash outside the premises by the Affiant. (s) Richard K. Weller Criminal Investigator, U. S. Treasury Department Sworn to before me, and subscribed in my presence, March 24,1962 (s) Herbert H. Sawyer . The evidence shows that while DiPietro had purchased the property seven months previously, he had never recorded his title, forgot what he did with his deed, never made monthly mortgage payments, and never took out insurance, arranged for utility services, or paid taxes. While he had driven by the property, he had never set foot on it, moved personal property to it, rented it, made any effort to rent it, leased it, given permission to anyone to use it, or knew that anyone was occupying it. He declared himself not interested in the house or buildings, which were “in poor shape” and were of “no value” to him. His avowed purpose in purchasing the property (under the assumed name of John Fino) was to raise horses and Christmas trees, neither of which objective was ever pursued. For almost six months prior to the search, since September, he was attempting to find a purchaser, although he did not talk with a broker, or erect a “for sale” sign or advertise the property. He testified that what had changed his mind about the use to him of the property was that “I had attempted to get into the horse business and maybe cultivate some Christmas trees on the property, and I had the few dollars and within a few weeks I had lost it all * * .” . The basic principle that there be enough basis for the magistrate to conclude that probable cause exists at the time he issues his warrant has been stated in Sgro v. United States, 1932, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260. In Poldo v. United States, 9 Cir., 1932, 55 F.2d 866, the court, after commenting that the affidavit lacked a date of observation, said, 55 F.2d at 868, “Time of the affidavit’s observations, which are set forth as constituting probable cause that a crime has been committed, is of the essence of the affidavit.” In Kohler v. United States, 9 Cir., 1925, 9 F.2d 23, the court referred to the failure to fill in the spaces for the day and month of alleged possession and sale of liquor as one of the “glaring” defects in the affidavit. In Staker v. United States, 6 Cir., 1925, 5 F.2d 312, an affidavit was silent as to time. The court said, 5 F.2d at 314, “So far as the affidavit shows, the officer might have smelled the fumes months before the affidavit was made.” In Conti v. Morgenthau, S.D.N.Y., 1964, 232 F.Supp. 1004, the court held invalid an affidavit alleging the placing of wagers on certain dates at an apartment and two undated visits of defendant to the apartment. It pointed out the lack of connection of the visits and the wagers, the failure to allege dates “or indeed that the visits were recent”. In United States v. Bosch, E.D.Mich., 1962, 209 F.Supp. 15, an affidavit silent as to when surveillance was made, was held invalid. While not the only reason for its decision, the court indicated that tlie absence of time allegation would have been a sufficient basis. In Williams v. Commonwealth, Ky., 1962, 355 S.W.2d 302, where the affidavit alleged that defendant “has in his possession at this time beer and whiskey * * for the purpose of sale”, the court held that it was defective for not disclosing when the underlying observation was made. In Odom v. State, 1932, 121 Tex.Cr.R. 209, 50 S.W.2d 1103, where the affidavit alleged that certain “equipment is being, used”, the court held it defective for not revealing that the conduct occurred within a reasonable time. In People v. Musk, 1925, 231 Mich. 187, 203 N.W. 865, an affidavit that affiant “has seen” certain things was held invalid for lack of a time averment. Waggener v. McCandless, 1946, 183 Tenn. 258, 191 S.W.2d 551, 162 A.L.R. 1402, is not in conflict with this line of cases. While a precise date of receiving information was not alleged, the affidavit stated that affiant had “just received” the information, and the court accordingly upheld the affidavit. Opposing this array of authority, we have found only two cases upholding an affidavit where no indication of time of receiving information or observation appeared on its face. In Hanson v. State, 1933, 55 Ok.Crim. 138, 26 P.2d 436, the court held it sufficient that the undated observations were made by the affiant and that the allegation of commission of the offense was stated in the present tense. In People v. Warner, 1923, 221 Mich. 657, 192 N.W. 566, an affidavit saying that the affiant “has seen” and “has smelt liquor”, with no allegation as to time, was held sufficient. There seems to have been no issue raised as to the lack of averment of time. Corroborating the traditional interest of the courts in being able to fix the time' of observation of the underlying facts asserted in affidavits are the many cases where the validity of the warrant was determined by the proximity or remoteness of the events observed. See Schoeneman v. United States, 1963, 115 U.S. App.D.C. 110, 317 F.2d 173 (107 days— invalid); Irby v. United States, supra, (8 days—valid); Dandrea v. United States, 8 Cir., 1925, 7 F.2d 861 (42 days — invalid); United States v. Sawyer, D.C. 1963, 213 F.Supp. 38 (107 days—invalid); United States v. Long, D.D.C., 1959, 169 F.Supp. 730 (11 days—valid); United States v. Allen, E.D.Ky., 1957, 147 F.Supp. 955 (16 days—valid); United States v. Nichols, W.D.Ark., 1950 Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number. Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. ATLANTA INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellee, v. YELLOW CAB COMPANY, INC., Defendant-Appellant. No. 91-1610. United States Court of Appeals, Seventh Circuit. Argued Dec. 4, 1991. Decided May 5, 1992. Rehearing Denied June 26, 1992; Motion to Stay Mandate and Vacate Denial of Petition for Rehearing Denied Aug. 11, 1992. Robert M. Chemers, Scott 0. Reed and Robert J. Franco (argued), Pretzel & Stouf-fer, Chicago, Ill., for plaintiff-appellee. Alvin R. Becker (argued) and Joel M. Horwich, Beerman, Swerdlove, Woloshin, Barezky & Berkson, Chicago, Ill., for defendant-appellant. Before WOOD, Jr. and CUDAHY, Circuit Judges, and GRANT,- Senior District Judge. Judge Harlington Wood, Jr., assumed senior status on January 16, 1992, after this case was argued before the court. Honorable Robert A. Grant, Senior District Judge of the United States District Court for the Northern District of Indiana, sitting by designation. CUDAHY, Circuit Judge. Atlanta International Insurance Company (Atlanta) brought this diversity action against Yellow Cab Company, Inc. (Yellow) seeking a declaration of the rights of the parties under an excess insurance policy issued to Yellow by Atlanta. Atlanta claims that it has no duty to provide excess coverage to Yellow for a judgment obtained against Yellow by one Edward Watson because Yellow breached the notice provision of the policy. The district court agreed and granted summary judgment for Atlanta. We affirm. I. Yellow is covered for liability up to $400,-000 under two policies issued by American Country Insurance Company (American). Yellow’s policy with Atlanta provides coverage for claims exceeding the $400,000 limit of the combined American policies. The excess insurance policy issued by Atlanta contains the following provision regarding notice: The insured shall immediately advise the Company of any accident or occurrence which appears likely to result in liability under this Policy and of subsequent developments likely to affect the Company’s liability hereunder. While these policies were in effect, one of Yellow’s cabs was involved in a collision with a motorcycle driven by Edward Watson, who sustained serious injuries to his left leg. Yellow immediately notified American, which undertook an apparently thorough investigation of the accident. Four months later, Watson filed a lawsuit against both the cab driver and Yellow seeking $500,000 in damages. Despite the amount of the ad damnum, Yellow and American concluded that Yellow’s liability to Watson would not penetrate the excess insurance layer provided by Atlanta. Therefore, Yellow did not notify Atlanta of either the accident or the filing of the lawsuit. Prior to and during the. course of the trial, Watson offered several times to settle the case for less than $400,000, but American (which controlled the case under the terms of Yellow’s policy) refused. The jury returned a verdict in favor of Watson for just over $700,000. Yellow paid the excess over $400,000, then notified Atlanta and requested reimbursement. Atlanta refused on the ground that Yellow had breached the notice condition of the policy and brought this action seeking a declaratory judgment to that effect. The district court found that Watson’s complaint asking for $500,000 in damages “informed Yellow that there was a sufficient likelihood of penetration of the excess coverage to require notification of Atlanta.” Slip op. at 6,1991 WL 4428. Yellow’s failure to notify Atlanta upon receipt of the complaint thus constituted a breach of the policy’s notice provision. The district court also found no factual dispute that Atlanta had been prejudiced by the late notice because it had been unable to take advantage of opportunities to settle the case for an amount well under the limits of the primary coverage. Accordingly, the court granted summary judgment in favor of Atlanta. We review the district court’s grant of summary judgment de novo. Karazanos v. Navistar Int’l Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991). Summary judgment is appropriate only if, taking all facts in the light most favorable to the nonmoving party, we conclude that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990). II. No Illinois court has specifically addressed the question whether an ad damnum amount exceeding an insured’s primary coverage requires the insured to notify its excess insurer under an “appears likely” notification provision. However, Yellow contends that a recent Illinois appellate decision, Atlanta Int’l Ins. Co. v. Checker Taxi, 214 Ill.App.3d 440, 158 Ill.Dec. 228, 574 N.E.2d 22 (1991), is sufficiently close to be dispositive of this case. We examine that decision in some detail. The facts of Checker Taxi are, up to a point, quite similar to those of the case at bar. Checker Taxi Company, Inc. (Checker) had a policy of excess insurance with Atlanta (the same Atlanta as in this case), which covered Checker for liability over $400,000. The policy contained a notice provision identical to the one at issue here. During the period covered by this policy, one of Checker’s cab drivers was involved in an accident in which a mother of two young children was killed. Checker notified its primary insurance carrier, which investigated the accident and concluded that Checker’s driver had probably not been at fault. Based on that conclusion, Checker decided not to notify Atlanta of the accident. Three weeks after the accident, the decedent’s estate filed a wrongful death action against Checker, seeking damages in excess of the jurisdictional minimum of $15,000. Checker did not notify Atlanta of the suit until almost two years later, following a pre-trial conference at which the plaintiffs attorneys presented a settlement demand of $1.5 million. Atlanta filed a declaratory judgment action against Checker seeking a determination that it had no duty to cover any excess losses arising out of the accident because Checker had breached the notice provision. The appellate court reversed the trial court’s grant of summary judgment for the insurer, finding that Checker’s notice was timely under the policy. According to Yellow, Checker Taxi holds that when an excess insurance policy requires notice to the insurer only when it “appears likely” to the insured that an occurrence will implicate the excess coverage, the “appearance of likeliness” is measured solely by the excess insured’s investigation and evaluation of the claim. That evaluation, if reasonable, will be conclusive on the insurer. Further, Yellow argues, the facts of Checker Taxi are so close to the facts of this case that we must find Yellow’s evaluation of Watson’s claim to have been reasonable as a matter of law. We disagree with Yellow’s reading of Checker Taxi. The Checker Taxi court stated that the “key question” in the case was the following: “At what point should Checker reasonably have known that its excess insurance coverage would be implicated?” 158 Ill.Dec. at 231, 574 N.E.2d at 25. In the case at bar the district court has already answered that question: “Yellow’s receipt of the complaint seeking damages that would penetrate the excess coverage ... informed Yellow that there was a sufficient likelihood of penetration of the excess coverage to require notification of Atlanta.” Slip op. at 6, 1991 WL 4428. In other words, Yellow not only should have known that its excess insurance coverage might be implicated, it in fact did know. Therefore, it should have notified Atlanta upon receipt of the complaint. Nothing in Checker Taxi persuades us to reach a different conclusion. In Checker Taxi, the only basis on which the insured could determine at the time the lawsuit was filed whether or not its excess coverage would be implicated was its own investigation and evaluation of the claim. By contrast, Yellow had not only its own evaluation, but also that of the plaintiff, in the form of the ad damnum. Checker had no information analogous to the ad damnum in the present case until Checker received a settlement demand that exceeded the amount of its primary coverage, at which time it notified its excess insurers of the suit against it. In fact, the Checker Taxi court suggested that if Checker had not informed Atlanta at that point then its action might have been unreasonable: [Njeither occurrence of the accident nor the filing of the wrongful death action ... triggered an absolute duty at that time to give notice of potential claim under the excess policy. The results of the pre-trial conference, however, changed the picture and Checker realized that notice to its excess insurance carriers was necessary. 158 Ill.Dec. at 231, 574 N.E.2d at 26 (emphasis added). Similarly, whatever Yellow’s initial evaluation of the damages to Watson, the ad damnum requesting damages in excess of the amount of Yellow’s primary coverage “changed the picture” and made notice to Atlanta necessary. This conclusion is supported by another Illinois appellate decision, Brownlee v. Western Chain Co., 74 Ill.App.3d 804, 30 Ill.Dec. 479, 393 N.E.2d 515 (1979), on which the Checker Taxi court relied. In Brownlee, Midland Insurance Company (Midland) had issued to Western Chain Company (Western) an excess insurance policy that included the following notice provision: “Whenever the Insured has information from which the Insured may reasonably conclude that an occurrence covered hereunder involves injuries or damages which ... is [sic] likely to involve this policy, notice shall be sent to [Insurer] as soon as practicable.” Id., 30 Ill.Dec. at 480, 393 N.E.2d at 516. Western’s president received a summons informing him that suit had been filed against Western in another jurisdiction without stating the amount demanded. As it turned out, the ad dam-num was in excess of Western’s primary coverage, a fact that Western could easily have discovered. Western, however, took no action whatsoever, and did not inform Midland of the suit until after a default judgment had been entered for the amount of the ad damnum. The Illinois appellate court held that Western had not breached the notice provision. The court found that the provision referred to the actual knowledge of the insured, and concluded that “[h]ere, ... actual knowledge of the ad damnum was not disclosed by the ... summons and ... the summons itself was insufficient, in itself, to raise the specter of excess liability.” Id., 30 Ill.Dec. at 484, 393 N.E.2d at 520. The clear implication is that, had Western been aware of the ad damnum in the complaint, Western would have had actual knowledge that the occurrence was “likely to involve” the excess insurance policy. Western would therefore have been required to notify Midland under the terms of the policy. Yellow clearly was aware of the ad damnum in Watson’s complaint. The district court did not err in holding that Yellow was therefore required to notify Atlanta under the terms of its excess insurance policy. III. The parties argue at some length about whether an excess insurer is required to show that it was prejudiced by its insured’s breach of a notice provision in order to avoid liability. We need not reach this issue, however, because the district court found no factual dispute that Atlanta had been prejudiced by Yellow’s late notice, and Yellow presents no basis for finding such a dispute on appeal. IV. For the foregoing reasons, the judgment of the district court is Affirmed. . The parties agree that Illinois law governs this case. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_circuit	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. BARNETT v. EQUITABLE TRUST CO. OF NEW YORK et al. (UNITED STATES, Intervener). EQUITABLE TRUST CO. OF NEW YORK v. UNITED STATES. Circuit Court of Appeals, Second Circuit. July 15, 1929. No. 331. See, also, 21 F.(2d) 325. Charles H. Tuttle, U. S. Atty., of New York City, and Nat M. Laey, Sp. Asst. Atty. Gen. (O. H.-Graves, of Washington, D. C., on the brief), for appellant. Patterson, Eagle, Greenough & Day, of New York City, Hummer & Foster, of Henryetta, Okl., and Cochran & Ellison and MeCrory & Monk, all of Okmulgee, Okl. (Carroll G. Walter, of New York City, of counsel), for appellees. Before L. HAND, SWAN1, and AUGUSTUS N. HAND, Circuit Judges. L. Hand, Circuit Judge (after stating the facts as above). We hold that the District Court had power to make an allowance out of the fund. Whatever the status before May 27,1908, of the lands of allottees of the Five Civilized Tribes of whom the Creeks are one, the act of that day (35 Stat. 312), established their position from that time on. They were not to be conveyed before April 26, 1931, “except that the Secretary of the Interior may remove restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” The property remained the Indian’s, but he was restrained in its alienation, except as the Secretary might allow; when the Secretary concurred, he was free, like another owner, to transfer his rights. This applied as well to the proceeds of his land, in this instance to the royalties arising from a lawful lease, as to the realty itself. When, therefore, Barnett with the Secretary’s consent gave the securities to the Mission, the funds passed to its hands unrestricted and as free funds. Only a court could undo the transaction so taking place. This is plain, if Barnett knew enough of what he was about to intend' the transfer. In that ease title passed, and a court of equity must declare it void. If as the twentieth article of the bill seems to allege, he did not so intend, at least possession passed, and the Secretary could not recall it by virtue of his office; either Barnett or the United States must sue to get it. What either got might have to come back to the Secretary’s custody, but his powers would revive only then, and to only so much as in fact did. We can therefore see no reason to-say that the court’s wings were clipped, by restrictions which the Secretary had lawfully, if improvidently, removed, or that it need, or indeed should, have shared its jurisdiction with him. It could, for instance, scarcely be argued that, had the res been meanwhile cared for by a third person, he could not intervene in the suit in his own behalf and secure a determination of his claim, or that he must present it to the Secretary and abide his decision. Congress might perhaps have vested him with such power, but it did not. The res was at large; courts alone could direct its distribution. The situation, therefore, is-no different from that often before á court, in which it is necessary to sacrifice part of a property to preserve or regain the rest. The District Court, not being able to decide-without evidence and assistance as to the law, properly restored only so much as remained after those services were paid which had enabled it to aet, Kendall v. Ewert, 25& U. S. 139, 149, 42 S. Ct. 444, 66 L. Ed. 862. The stake was the remainder, to which alone the restrictions of the statute can apply. The only question is of the proper amount. Barnett might have sued alone, as he did (Tiger v. Western Investment Co., 221 U. S. 286, 31 S. Ct. 578, 55 L. Ed. 738), or the United States might have sued for him (Heckman v. U. S., 224 U. S. 413, 32 S. Ct. 424, 56 L. Ed. 820); the choice lay with the Attorney General. He did sue alone, and certainly until he procured the intervention of the United States his attorneys might claim for their services as in any other case. In January, 1926, this changed, for the United States then intervened as a party plaintiff, unlike Bailey, who was not a party at all. The Attorney General might, indeed, have imposed it as a condition that Barnett should retire, which would have left the United States in complete charge. He did not, probably for the reason, that Barnett’s attorneys had already gone so far; but we see no reason why there should not have been two plaintiffs, and why each should not be-represented. But, if so, the appellees should not be deprived of fees which they earned-under their separate retainer. They had received no intimation that their services were-for the United States, which, had it been, made, would certainly have provoked a definite understanding. Each plaintiff proceeded in its own behalf, and, while the appelleesmust in theory abate their claim for any services'in fact made unnecessary by the intervention, there need be no such deduction,. for they did substantially all that was done. It is too late now, after the heat of the day, to suggest that their client had been changed sub silentio. However, we cannot agree that the Oklahoma litigation was part of this suit, or that those services should be paid for here. True, Barnett was an incompetent person, and as such the court would not leave him to his own devices, which were so meager. Bailey appeared as his proehein ami, and the court was satisfied to let him continue. It need not have done so; at any time it might have displaced him and substituted some one else. King v. McLean, etc., Hospital (C. C. A. 1) 64 F. 331, 354, 355, 26 L. R. A. 784; Street, § 459. Hence it was a matter of no moment to this suit what took place thereafter in Oklahoma. Bailey got no authority over the assets in New York by his letters in Oklahoma. Hoyt v. Sprague, 103 U. S. 613, 631, 26 L. Ed. 585; Morgan v. Potter, 157 U. S. 195, 15 S. Ct. 590, 39 L. Ed. 670; Lamar v. Micou, 112 U. S. 452, 470, 5 S. Ct. 221, 28 L. Ed. 751; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153; Kraft v. Wickey, 4 Gill & J. (Md.) 332, 23 Am. Dec. 569; Grimmett v. Witherington, 16 Ark. 377, 63 Am. Dec. 66. Indeed, these were revoked, without efféet upon this prosecution. He might have been enjoined, or prohibited, or otherwise prevented from taking aetion; it would have accomplished nothing. Barnett, and Barnett alone, was the plaintiff; the assets were here, and the District Court would and should have protected him by securing a proper substitute. After the intervention of the United States, this might, indeed, have been unnecessary, though in view of its relative inaction it would still have been wise. So we cannot see how the appellees can be allowed anything for those services, and in so far as they entered into the allowance the mistake was one of law. The appellees argue that it was a reasonable precaution to contest these proceedings, whether necessary or no; but we cannot agree. We do not think that it was a precaution; to us the litigation seems plainly irrelevant. The appellees, being learned in the law, if not chargeable with such a mistake, at least cannot make it a part of their claim here, for in fact they did not in this activity assist the prosecution at all. Besides, it is doubtful whether there was a mistake, for there was quite another reason why they may have thought it important to keep Bailey a guardian. They had a contract with him for 40 per cent, of the recovery, which they believed, perhaps rightly, was valid, and which depended upon his continued authority. However, even after these services are excluded, there undoubtedly remained a large amount of labor necessarily involved in the prosecution. Barnett, who had the mentality of a child, could not help; he had been surrounded by those who meant only to fleece him; they would not help. The Department of the Interior would take no aetion, apparently believing that the money was better employed as it was than Barnett or his heirs could employ it. The evidence had tó be drawn from unwilling sources, and the right was not altogether clear. Barnett, as a restricted Indian, was not legally competent to convey, however competent he might personally be, judged by ordinary standards. Congress had put him under the tutelage of the Secretary, merely by virtue of his- status, though, if the Secretary approved, this was removed. Doubtless the Secretary’s approval, standing alone, was not a conveyance; we may also assume that a conveyance, defective even in its faetum, would b,e the equivalent of none. But it was not clear that Barnett did not actually mean to convey, and, if he did, his gift was not void, but must be set aside because of his personal incapacity. It was possible that a court might hold that, being in any case non sui juris, his personal incapacity was a part of his status, and, that, once the Secretary had approved, acting upon the facts of his ease, the gift was valid. We think that the hazard was substantial. The allowance depends in part upon the amount at stake. Between February 1,1923, when‘the gift was made, and November 21, 1927, when the decree 'was entered, the • income falling due under the bonds was less than $140,000, though by how much we do not know, as the market value of the bonds was in some instances above par. Of this Barnett during this period was entitled to about $96,000, regardless of the result, and the total amount involved was therefore substantially less than $600,000. If there be a rule in the District Court that in such cases allowances shall be made upon a basis of one-third of the amount involved, we do not know it and we disapprove it; it certainly has never had our sanction. We do not mean, of course, that a percentage basis is in itself improper; but it cannot be fixed at the same rate for all eases regardless of the amount. The allowance is a payment for legal services, not a speculative interest in a lawsuit. It does not appear whether the District Judge included the Oklahoma litigation with the rest, though we should have expected him to pay that he did not, if that were so. Whether he did or not, we think the allowance plainly too large. It is argued that we should not disturb it, unless there has been an abuse of discretion. Perhaps so, but that phrase means no more than that we will not intervene, so long as we think that the amount is within permissible limits; if our conviction is definite that it is, we cannot properly abdicate our judgment. Had the result been certain, we should have thought $50,000 enough for the work involved, excluding the Oklahoma litigation. As the hazard was real, for the reasons we have given, we think that $100,000 might be allowed, but that appears to us the utmost that could be. It is idle to go into details; such matters are proverbially uncertain, and men will undoubtedly differ about them; but we think it of much importance that in cases of the kind the inducement shall be kept within liinits. The allowance to Bailey we will not disturb. Award reduced to $100,000 and expenses; decree otherwise affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
sc_casesourcestate	07	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. UNITED STATES v. DISTRICT COURT IN AND FOR THE COUNTY OF EAGLE et al. No. 87. Argued March 2, 1971 —Decided March 24, 1971 Mr. Justice Douglas delivered the opinion for a unanimous Court. MR. Justice HarlaN, though joining in the opinion, filed a concurring statement, post, p. 530. Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Kashiwa, Francis X. Beytagh, Jr., Edmund B. Clark, and Charles N. Woodruff. Kenneth Balcomb argued the cause for respondents. With him on the brief were Robert L. McCarty, George L. Zoellner, Don H. Sherwood, and Raphael J. Moses. Briefs of amici curiae were filed by Gary K. Nelson, Attorney General, and Irving A. Jennings for the State of Arizona et al.; by Thomas C. Lynch, Attorney General, Walter S. Rountree, Assistant Attorney General, and David B. Stanton, Deputy Attorney General, for the State of California; by Duke W. Dunbar, Attorney General of Colorado, Lee Johnson, Attorney General of Oregon, Harvey Dickerson, Attorney General of Nevada, Robert M. Robson, Attorney General of Idaho, Robert L. Woodahl, Attorney General of Montana, and G. Kent Edwards, Attorney General of Alaska, for the States of Colorado et al.; by G. T. Blankenship, Attorney General, and W. Howard O’Bryan, Jr., Assistant Attorney General, for the State of Oklahoma; by Vernon B. Romney, Attorney General, Robert B. Hansen, Deputy Attorney General, and D allin W. Jensen, Assistant Attorney General, for the State of Utah; by Slade Gorton, Attorney General, and Charles B. Roe, Jr., and Henry W. Ipsen, Assistant Attorneys General, for the State of Washington; and by James E. Barrett, Attorney General, Sterling A. Case, Deputy Attorney General, and Jack R. Gage, Special Assistant Attorney General, for the State of Wyoming. Mr. Justice Douglas delivered the opinion of the Court. Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under Colo. Rev. Stat. Ann. § 148-9-7 (1963). The Colorado court issued a notice which, inter alia, asked all owners and claimants of water rights in those streams “to file a statement of claim and to appear ... in regard to all water rights owned or claimed by them.” The United States was served with this notice pursuant to 43 U. S. C. § 666. The United States moved to be dismissed as a party, asserting that 43 U. S. C. § 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States. The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. 169 Colo. 665, 458 P. 2d 760. The case is here on a petition for certiorari, which we granted. 397 U. S. 1005. We affirm the Colorado decree. It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in Arizona v. California, 373 U. S. 546, the Federal Government had the authority both before and after a State is admitted into the Union “to reserve waters for the use and benefit of federally reserved lands.” Id., at 597. The federally reserved lands include any federal enclave. In Arizona v. California we were primarily concerned with Indian reservations. Id., at 598-601. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Id., at 600-601. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876. The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights. Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U. S. C. § 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law. The consent to join the United States “in any suit (1) for the adjudication of rights to the use of water of a river system or other source” would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a “river system” within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The “river system” must be read as embracing one within the particular State’s jurisdiction. With that to one side, the first clause of §666 (a)(1), read literally, would seem to cover this case for “rights to the use of water of a river system” is broad enough to embrace “reserved” waters. The main reliance of the United States appears to be on Clause 2 of § 666 (a) which reads: . . for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” This provision does not qualify § 666 (a)(1), for (1) and (2) are separated by an “or.” Yet even if “or” be read as “and,” we see no difficulty with Colorado’s position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read § 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place “the administration of such rights” in § 666 (a)(2) must refer to the rights described in (1) for they are the only ones which in this context “such” could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired “by purchase” or “by exchange,” which we assume would normally be appropriative rights. But it also includes water rights which the United States has “otherwise” acquired. The doctrine of ejusdem generis is invoked to maintain that “or otherwise” does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law. We reject that conclusion for we deal with an all-inclusive statute concerning “the adjudication of rights to the use of water of a river system” which in § 666 (a)(1) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights. It is said that this adjudication is not a “general” one as required by Dugan v. Rank, 372 U. S. 609, 618. This proceeding, unlike the one in Dugan, is not a private one to determine whether named claimants have priority over the United States. The whole community of claims is involved and as Senator McCarran, Chairman of the Committee reporting on the bill, said in reply to Senator Magnuson: “S. 18 is not intended ... to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties defendant, any subsequent decree would be of little value.” It is said, however, that since this is a supplemental adjudication only those who claim water rights acquired since the last adjudication of that water district are before the court. It is also said that the earliest priority date decreed in such an adjudication must be later than the last priority date decreed in the preceding adjudication. The last water adjudication in this water district was entered on February 21, 1966, and the United States was not a party to that or to any prior proceeding in this water district. The United States accordingly says that since the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the consent envisaged by 43 U. S. C. § 666 is not present. We think that argument is extremely technical; and we decline to confine 43 U. S. C. § 666 so narrowly. The absence of owners of previously decreed rights may present problems going to the merits, in case there develops a collision between them and any reserved rights of the United States. All such questions, including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed here after final judgment by the Colorado court. Affirmed [For concurring statement of Mr. Justice Harlan, see post, p. 530.] 66 Stat. 560, 43 U. S. C. §666 (a), provides: “Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.” See Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446; Mason v. Hills Land & Cattle Co., 119 Colo. 404, 204 P. 2d 153. See Comment, 48 Calif. L. Rev. 94, 111 (1960). S. Rep. No. 755, 82d Cong., 1st Sess., 9. And see Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 448. Colo. Rev. Stat. Ann. § 148-9-7. Id., §148-9-13. The Colorado court stated: “We are not determining whether the United States has reserved water rights in connection with lands withdrawn subsequent to August 1, 1876, the date of Colorado’s admission to the Union; nor, if so, whether these rights have priority over previously adjudicated rights. These questions properly should be decided after the United States presents its specific claims for adjudication and the issues of fact and law are clearly drawn.” 169 Colo., at 577, 458 P. 2d, at 770. 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_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". CITY OF PHILADELPHIA v. STRAUB. In re HARLEIGH-BROOKWOOD COAL CO.'S ESTATE. No. 7018. Circuit Court of Appeals, Third Circuit. Aug. 9, 1939. John J. Gain and Thomas C. Egan, both of Philadelphia, Pa., for appellant. Alexander N. Rubin and Hirschwald, Goff & Rubin, all of Philadelphia, Pa., and G. Harold Watkins, of Frackville, Pa., for appellee. Before BIGGS, MARIS, and BIDDLE, Circuit Judges. BIDDLE, Circuit Judge. . This appeal involves the construction of a mining lease to determine whether the lessor or the lessee's trustee in bankruptcy is entitled to the equipment, machinery and supplies placed on the mine by the tenant and used in its operation. The referee in bankruptcy found for the trustee, and the lower court sustained the Referee. ' The lessor appealed. Nearly a month after the adjudication in bankruptcy the lessor served a notice of forfeiture on the bankrupt in accordance with a provision of the lease; and thereafter filed a reclamation petition asserting title to the property. At the time of the bankruptcy the tenant owed four months’ rent, but no notice of forfeiture had then been given. The question is, therefore, who had title to this property immediately before the bankruptcy. To the extent that this is governed by the intention of the parties we must look to the lease for its expression. Article XXII alone expresses any intention, and sets forth what shall happen when the lease expires, and when it is forfeited. Forfeiture is covered by Article XXV, and results where the lessee’s default has continued for sixty days after service of notice. Before the bankruptcy, therefore, neither expiration nor forfeiture had occurred, and Article XXII is not applicable, except as its language throws light on the parties’ intention as to title before expiration or forfeiture. It provides that at expiration the property shall be appraised, at the lessor’s option, and he is allowed to “retain” it at the appraised valuation. “Retain” hints that the lessor keeps what is his; but in effect the transaction is a purchase by the lessor from the lessee. If lessor does not exercise this option lessee may remove the improvements. If there is a forfeiture the lessee is not. entitled to an appraisal of the improvements, which “shall be taken to be the absolute property of the lessor.” From these words there is some indication that it was intended that the lessor’s title arose from the forfeiture, and therefore did not exist before. The older criteria of annexation to the real estate, or whether the improvements are necessary for the operation of the leased premises, have given way to the modern rule usually expressed by saying that the intention of the parties as to whether the property shall be treated as real estate, and therefore as belonging to the landlord, or as personal property, and so the tenant’s, shall govern. The change doubtless came from the difficulty in determining when attachments to the land became a part of it. Ultimately such a rule must mean intention as to title, not as to the nature of the property, if the intention of the parties, and not a somewhat metaphysical classification, is to control. Parties usually do not speculate as to whether improvements are realty or personalty, but do consider who owns them. For the modern test therefore the provisions of leases often afford little help, and intention is constructed by the courts from reasoning more adapted to the older conception. In the case of Wick v. Bredin, 189 Pa. 83, 42 A. 17, a lease for coal lands contained a clause allowing the lessee to abandon the lands and remove the improvements. A creditor of the lessee levied on them. The lessor declared a forfeiture, under a forfeiture clause similar to that before us, by reason of nonpayment of rent, and claimed the property as part of his real estate. The court held that the provision allowing the lessee to remove showed an intention to treat the property as personalty; that this intention governed; that the property was therefore the lessee’s.; and that a forfeiture under the clause in the lease of the lessee’s property to the lessor was “odious” and would not be enforced. Wick v. Bredin, supra, is perhaps distinguishable — the lessee’s rights there were broader. But it presents substantially the same situation as here, and its authority is applicable. Here too the forfeiture bears no relation to any liquidated damages, and as a penalty will not be enforced. Penn-Ohio Gas Company v. Frank’s Heirs et al., 322 Pa. 233, 185 A. 280; Whiteside v. Rocky Mountain Fuel Co., 10 Cir., 101 F.2d 765. The cases cited by appellant do not deal with forfeiture of the property but forfeiture of the lease, upon a breach by lessee, an enforceable clause. And in Re American Fork Exploration Co., 8 Cir., 291 F. 746, there was no forfeiture of property, which, under the express provisions of the lease, the lessee had no right to remove, and which went to the lessor at the end of the term. Appellant says the trustee should not have the property without paying the rent. But the rent claimed is for a period prior to bankruptcy, there is no claim for use and occupancy; and no theory of equitable lien can be extracted from the language of the lease. In the Rocky Mountain Fuel Co. case, supra, such a lien was expressly provided, and was held enforceable under • Colorado law. We need not consider therefore whether, if found in this lease, it would be enforceable under the' law of Pennsylvania, although the lessor had taken no steps to perfect it before bankruptcy. Judgment affirmed. Sproul v. Help Yourself Store Co., 3 Cir., 16 F.2d 554; Empress Theatre Co. v. Horton, 8 Cir., 266 F. 657; Lindeke v. Associates Realty Co., 8 Cir., 146 F. 630; Potter v. Gilbert, 177 Pa. 159, 35 A. 597, 35 L.R.A. 580. In the last case the landlord, on forfeiture of the lease, was allowed to keep the improvements at their appraised value — obviously not a forfeiture of the property. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. BISSELL CARPET SWEEPER CO. v. PORTER STEEL SPECIALTIES et al. No. 7507. Circuit Court of Appeals, Seventh Circuit. April 16, 1941. Rehearing Denied May 22, 1941. Ralph L. Chappell, of Kalamazoo, Mich., and Ralph G. Lockwood, of Indianapolis, Ind., for appellant. Hood & Hahn, of Indianapolis, Ind., for appellees. Before EVANS and MAJOR, Circuit Judges, and BR1GGLE, District Judge. EVANS, Circuit Judge. The success of plaintiff’s effort to hold defendants’ carpet sweeper within the scope of claims 1, 2, and 3 of Bissell Patent No. 2,085,209, covering a “Dust Pan Dump For Carpet Sweepers,” is the only issue which this appeal presents. The patent issued at a time when defendants were making sweepers with a dust pan dump arrangement quite like the one described in the patent. As a result of plaintiff’s assertion of infringement, defendants sought permission to complete those in the process of manufacture and to sell them. Plaintiff agreed thereto, in consideration whereof defendants acknowledged the validity of the patent and agreed not to infringe it in the future. The issue of validity was thus eliminated. Noninfringement by subsequently manufactured sweepers is defendants’ only reliance. To determine better the range of equivalents, the court admitted evidence of the prior art. This was received not to defeat the patent but to ascertain its true scope— and incidentally, to illumine the limits of equivalents of the elements hereafter set forth in a typical claim. For in this, as in almost all patent infringment suits where noninfringement becomes the chief (or sole) defense, the outcome turns upon the presence of an equivalent of an essential element rather than upon the existence of a Chinese copy of said element. Here, we are dealing, not with that useful apparatus known as a carpet sweeper, but with an improvement in an essential feature of such a sweeper, “the dust pan dump.” The appeal of this invention is to be found not in the uninteresting matter which the name suggests, but in the mechanism whereby the user more readily and easily reaches those spots under sofas, etc., where dust and dirt are prone to lie safe from attack, save during a siege of housecleaning. The dust pan dump is an essential feature in a successful carpet sweeper. If the sweeper is to be effective it must collect and retain dust, and when the accumulation is large, it must be dumped by the operator. The invention in suit, so the inventor says, covers the “mechanism for dumping” the dust pans of the carpet sweeper. The patent is narrow, yet its validity has been placed beyond our inquiry by defendants’ agreement, made when they settled the threatened infringement suit. From the specifications we gather that a conventional carpet sweeper casing has ends, floor wheels, and a brush or brushes. None of them forms any part of the invention in question. The dust pans are pivoted between the ends of the carpet sweeper casing. There is a bent spring between the pans, which is pivoted in the pans and has an upwardly extending loop which is raised to dump the pans. The spring serves to maintain the pans in the closed position, as well as to dump them by its raising movement. A handle comprising a bail is provided. It is pivoted in a conventional manner in the end of the case and has a nib which extends through the slot and under the upwardly extending loop of the spring. An annular groove serves to engage the spring and prevent its slipping off the bail. When the pans are in a closed position the nib rests at the bottom of the slot and is held yield-ingly in place by the spring. A raising of the handle bail and with it, the nib, raises the loop of the spring and causes the dust pans to dump. This is accomplished by holding one hand against the carpet sweeper casing and pulling on the handle bail. Releasing the bail causes the dust pans to be forced back to closed position by the spring which at the same time tends to yieldingly hold the nib in the bottom of the slot. Thus does the inventor in substance describe his invention and its operations in the specifications. For the purpose of better understanding, we define the word “nib” and also the words “handle bail.” A nib is a pointed part or prong, a projecting part, or a pointed extremity. A handle bail is usually,a hook handle, hoop handle on a vessel, like a kettle, etc. We herewith divide claim 2 (typical of the three claims in suit) into its several elements : 1. A carpet sweeper casing. 2. Dustpans pivoted between the ends of said casing. 3. Means for holding' said dustpans closed and for dumping said dustpans comprising a spring extending between the pans and having an upwardly extending loop which is raised to' dump said dustpans. 4. A vertical slot in one end of the casing, and 5. A handle including a bail having a nib pivoted in and extending through said vertical slot and under said upwardly extending loop whereby the pans may be dumped by an upward movement of said nib. The trial court found that the bail of the patent formed part of the operating handle for the main body of the sweeper and is an essential element of the mechanism for causing pan dumping. In defendants’ sweeper the element by which the dust pans are dumped is not the bail which is employed by the operator of the sweeper to move the same over the floor. Its sweeper has the old, well-known type of operating handle with its bail, which is pivoted on rigid pivots carried by the casing. No part of this handle is movable to cause pan dumping. The connection between the handle bail and the pan operating yoke which causes the yoke to partake of the swinging movements of the operating handle does not affect pan dumping. As far back as 1889 there was a patent to one Walter J. Drew covering a carpet sweeper which had for its alleged object “a novel means for opening and automatically closing the tilting dust pans of a carpet sweeper.” The drawings and specifications show a sweeper somewhat like the modern one, and not greatly distinguishable from the mechanism for collecting and dumping the dust. Restricting and narrowing the unoccupied and unpreempted field were the patents to-Drew, No. 415,903; to Sanford, Nos. 481,-827, and 481,828; and to Pullen, No. 1,933,-758. We are persuaded that defendants do not have in their sweeper, element 5 of claim 2 of the patent in suit. Closer is the question of the equivalents of said element 5 of said claim 2. Consider--ing the prior art, we are satisfied that neither the defendants’ handle bail nor its nib structure is the equivalent of that defined in element 5 of claim 2. Our conclusion is that the District Court properly held the claims were not infringed. The decree is affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_respond1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. STERRETT OPERATING SERVICE, Inc., v. BAKER et al. No. 6075. Court of Appeals of the District of Columbia. Argued March 8, 1934. Decided April 9, 1934. Norman E. Sill, of Washington, D. C., for plaintiff in error. A. D. Smith, of Washington, D. C., for defendants in error. Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices. PER CURIAM. This case is here on writ of error to the municipal court in an action for damages for breach of warranty. It appears that the defendants in error, plaintiffs below, purchased from the defendant, Sterrett Operating Service Corporation, a certain three and a half ton used truck, on which a small cash payment was made and a conditional bill of sale given, under which the defendant company retained the title to the truck until the purchase price had been paid. The plaintiffs made a trip into Pennsylvania with the truck, in which the motor was discovered to be defective, and they allege that to repair the same it cost them $154.60, for which amount this suit for damages was brought. The plaintiffs pitch their ease for damages on an alleged breach of warranty, under which it is alleged that they “purchased from the defendant a 3%-ton G.M.C. truck on the guarantee of the defendant that the motor of said truck had been completely overhauled and was in first class condition.” No warranty was contained in the conditional bill of sale, but it is contended that the warranty was made orally by the agent of the defendant at the time the purchase was made. We think it unnecessary to review the testimony, as set out in the record, since the ■ plaintiffs have failed to allege a cause of action upon which recovery could be had. Defendant, at the conclusion of the plaintiffs’ evidence, moved for judgment, which motion was denied and exception reserved. A similar motion, with exception reserved, was made at the conclusion of all the testimony. Without considering the merits of the case, it is settled law that an action for damages for breach of warranty will not lie until the title to the property has passed. The title to the property in this case, under the bill of sale, still remained in the defendant company. Assuming, without deciding, that evidence of an oral warranty, notwithstanding the written contract, would be admissible, other remedies were open to the plaintiffs. They could have refused to make payment, and in an action in replevin to recover the possession of the truck the defense of breach of warranty could be interposed (Marks v. Frigidaire Sales Corporation, 60 App. D. C. 359, 54 F.(2d) 974); or they could have continued their payments until title passed, and then brought their action to recover in damages the difference between the price agreed to be paid and the actual value, including compensation, for loss incurred in their effort in good faith to use the truck in compliance with the alleged warranty; or they could have promptly returned the property upon discovering the defect and recovered the consideration paid, or tendered the return of the property on condition that the seller return the payments received by him. The law applicable to the present case, however, is stated in Benjamin on Sales, p. 865, under the subject of Action Upon Warranty, as follows: “An action for a breach of warranty may be maintained although the goods are not paid for, or though notes for the price are still outstanding. Aultman v. Wheeler, 49 Iowa, 647; Thoreson v. Minneapolis Harvester Works, 29 Minn. 341, 13 N. W. 156, and others. * * * But no action will lie on a warranty unless the title has fully passed to the buyer. Therefore, where the sale was conditional on payment of the full price which was due in installments, and the last installment had not been paid, it was held in Frye v. Milligan, 10 Ont. R. 509 (1885), that no remedy yet existed on the warranty.” The same rule is announced in 24 Ruling Case Law, p. 156, § 429, and in support of the rule are cited Bunday v. Columbus Machine Co., 143 Mich. 10, 106 N. W. 397, 5 L. R. A. (N. S.) 475; New Hamburg Mfg. Co. v. Webb, 23 Ont. L. Rep. 44, 20 Ann. Cas. 817, and note; Peuser v. Marsh, 218 N. Y. 505, 113 N. E. 494, Ann. Cas. 1918B, 913. The judgment is reversed, with costs. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. PENNSYLVANIA RAILROAD CO. v. UNITED STATES. No. 451. Argued May 17, 1960. Decided June 13, 1960. Hugh B. Cox argued the cause for petitioner. With him on the brief was William F. Zearfaus. Assistant Attorney General Doub argued the cause for the United States. With him on the brief were Solicitor General Rankin and Alan S. Rosenthal. Mr. Justice Black delivered the opinion of the Court. This case involves the power of District Courts to review Interstate Commerce Commission orders determining the reasonableness of rates. In 1941 and 1942 the United States made 75 shipments of iron and steel over the Pennsylvania Railroad intended for export from the port of New York to Great Britain. War conditions prevented exportation from New York. This caused a dispute about applicable transportation charges since the Pennsylvania had in effect tariffs for “domestic rates” that were higher than “export rates.” Since the goods were not exported as planned the Railroad billed the United States for the higher domestic rates which the Government paid because required to do so by § 322 of the Transportation Act of 1940, 54 Stat. 955, 49 U. S. C. § 66. Later, under authority of the same section, the General Accounting Office deducted from other bills due the Railroad the difference between the higher and lower rates, claiming that the higher domestic rates were inapplicable, unreasonable and unlawful. The Railroad then brought this action in the Court of Claims to recover the amount deducted. Properly relying on our holding in United States v. Western Pacific R. Co., 352 U. S. 59, 62-70, the Court of Claims suspended proceedings to enable the parties to have the Interstate Commerce Commission pass on the reasonableness of the rates. After hearings the Commission found and reported that the domestic rates were “unjust and unreasonable” as to 62 of the shipments but “just and reasonable” as to 13. 305 I. C. C. 259, 265. The Railroad then took two steps to challenge that part of the order adverse to it: (1) it invoked the jurisdiction of a United States District Court in Pennsylvania under 28 U. S. C. §§ 1336, 1398, and 49 U. S. C. § 17 (9) to enjoin and set aside the order; and (2) it moved that the Court of Claims stay its proceedings until the District Court could pass upon the validity of the order. The United States objected to further stay in the Court of Claims and asked for dismissal of the case or judgment in its favor. It urged in support of dismissal that the Railroad had deprived the Court of Claims of jurisdiction when it filed the .District Court action to enjoin the Commission. order because 28 U. S. C. § 1500 declares that “The Court of Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff . . . has pending in any other court any suit or process against the United States . . . The Court of Claims rejected this contention and its action in this respect is not challenged here. The United States argued in support of its motion for judgment that the order of the Commission did not require anything to be done or not done, that it was therefore an advisory opinion only, and consequently not the kind of “order” subject to review by 28 U. S. C. § 1336, 49 U. S. C. § 17 (9), or any other provision of law. The contention of the United States was that although the Court of Claims was compelled to submit the question of the reasonableness of the rates to the Commission, neither that court nor any other court had power to review the Commission’s determination. The Court of Claims agreed with this contention of the United States, accordingly refused to stay the case for the District Court to pass on the validity of the order, and entered judgment for the Railroad for only $1,663.39, which the Commission had held to be recoverable, instead of the $7,237.87 which the Railroad claimed. The result is that the Railroad has been held bound by the Commission’s order although completely denied any judicial review of that order. We granted certiorari to consider this denial. 361 U. S. 922. The Railroad contends that it was error for the Court of Claims to refuse to stay its proceedings while the District Court reviewed the Commission’s order. The Solicitor General concedes here that this was error. We reach the same conclusion on the basis of our independent consideration of the record. We decided some years ago that while a mere “abstract declaration” on some issue by the Commission may not be judicially reviewable, an order that determines a “right or obligation” so that “legal consequences” will flow from it is reviewable. Rochester Telephone Corp. v. United States, 307 U. S. 125, 131, 132, 143. The record shows that the Commission order here meets this standard. The Commission found that the Railroad’s domestic rates were “unreasonable” as to 62 shipments. This order is by no means a mere “advisory opinion,” its “legal consequences” are obvious, for if valid it forecloses the “right” of the Railroad to recover its domestic rates on those shipments. We have held that judicial review is equally available whether a Commission order-relates to past or future rates, or whether its proceeding follows referral by a court or originates with the Commission. El Dorado Oil Works v. United States, 328 U. S. 12. For these reasons we conclude that the Railroad was entitled to have this Commission order judicially reviewed. We have already determined, however, that the power to review such an order cannot be exercised by the Court of Claims. United States v. Jones, 336 U. S. 641, 651-653, 670-671. That jurisdiction is vested exclusively in the District Courts. 28 U. S. C. § 1336, 49 U. S. C. § 17 (9). See Seaboard Air Line R. Co. v. Daniel, 333 U. S. 118, 122. Moreover, this order is properly reviewable by a one-judge rather than a three-judge District Court because it is essentially one “for the payment of money” within the terms of 28 U. S. C. §§ 2321 and 2325, which exempt such orders from the three-judge procedure of 28 U. S. C. § 2284. United States v. Interstate Commerce Comm’n, 337 U. S. 426, 441, 443. It necessarily follows, of course, that since the Railroad had a right to have the Commission’s order reviewed, and only the District Court had the jurisdiction to review it, the Court of Claims was under a duty to stay its proceedings pending this review. Other questions argued by the Government are not properly presented by this record. It was error for the Court of Claims to render judgment on the basis of the Commission's order without suspending its proceedings to await determination of the validity of that order by the Pennsylvania District Court. Reversed. 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_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 TRANSCONTINENTAL BUS SYSTEM, INC., et al., Trailways of New England, Inc., Capitol Bus Company, Inc., et al., Virginia Stage Lines, Inc., et al., Continental Tennessee Lines, et al., Deluxe Trailways, Inc., et al., American Buslines, Inc., et al., Continental Pacific Lines, et al., D. C. S. P. Motor Way, Inc., et al., Adirondack Transit Lines, Inc., et al.; National Trailways Bus System, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. TRANSCONTINENTAL BUS SYSTEM, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent (two cases). Nos. 22791, 23020-23027, 23054, 23099, 23512, 23513, 23410, and 23411. United States Court of Appeals Fifth Circuit. July 24, 1967. Theodore Hardeen, Jr., Charlottesville, Va., Howard S. Boros, Washington, D. C., Warren A. Goff, Dallas, Tex., for petitioners. O. D. Ozment, Assoc. Gen. Counsel, Joseph B. Goldman, Gen. Counsel, Warren L. Scharfman, Assoc. Gen. Counsel, Robert L. Toomey, Acting Assoc. Gen. Counsel, John H. Wanner, Gen. Counsel, Civil Aeronautics Bd., Washington, D. C., Howard E. Shapiro, Atty., Dept, of Justice, Washington, D. C., for respondent. Before GEWIN, THORNBERRY and DYER, Circuit Judges. GEWIN, Circuit Judge: These are consolidated petitions for review of several orders of the Civil Aeronautics Board (Board) dismissing without a hearing the petitioners’ consolidated complaints which sought the suspension and investigation of tariffs filed by numerous air carriers providing for reduced rates for military standby, youth standby, and young adult passengers. The petitioners, forty-six independent motor carriers licensed by the Interstate Commerce Commission and a national trade association of motor bus operators, claimed that the tariffs were unreasonable, uneconomic, and unjustly discriminatory in violation of sections 403(b) and 404(b) of the Federal Aviation Act of 1958, 49 U.S.C. §§ 1373(b) and 1374(b) (1964). The Board found that the complaints failed to set forth sufficient facts to warrant suspension or investigation of the tariffs and, in accordance with § 1002 of the Act, 49 U.S.C. § 1482 (1964), dismissed the complaints without a hearing. The petitioners sought review of the orders approving the military standby tariffs in the eleven Courts of Appeals. The petitions were transferred to this Court and consolidated with the petition filed in this Court, Case No. 22,791. Subsequently, the petitioners sought review of the orders approving the youth and young adult fares in this Court, and those petitions, Nos. 23,410 and 23,411, were also consolidated with Case No. 22,791 in this proceeding. We affirm the action of the Board with respect to the military standby tariff, but set aside the orders relating to the youth and young adult tariffs and remand for further proceedings. The military standby tariff provides that military personnel traveling in uniform on leave, pass, or furlough or within seven days of discharge may fly on a standby basis for approximately one-half of the regular jet coach fare. The standby status permits the traveler to be accommodated only if seats are available after all regular fare passengers have been boarded and subjects him to being deplaned enroute or “bumped” to accommodate a regular fare passenger. The youth standby tariff similarly allows a rate reduction of fifty percent of the regular jet coach rate and provides carriage only after all regular fare and military standby passengers have been accommodated. Persons traveling under this tariff may also be “bumped” en-route. The reduced rates are available only to youths over the age of 12 and under the age of 22 who purchase an identification card issued annually by the airlines for the sum of $3.00. The reduced fares are unavailable during certain peak holiday periods, namely Easter, Thanksgiving, Christmas and New Years. The young adult fare tariff, proposed only by Allegheny Airlines, Inc. is also applicable only to persons between the ages of 12 and 22 who hold identification cards issued annually by the airline for the sum of $10.00. Cards procured after June 30, however, may be purchased for $5.00. This tariff provides for the making of reservations and the rates are two-thirds of the regular first class fare. To more fully understand the nature of these proceedings a short history of reduced fares for military personnel and youths is required. The Board first sanctioned reduced fares for military personnel traveling at their own expense in 1956. Those tariffs provided for reduced fares on flights between the continental United States and the then territories of Alaska and Hawaii. These rates were authorized under Board regulations issued pursuant to the provision of § 403(b) which excises overseas and foreign tariffs from the strictures of that section and relegates control of such traffic to the Board. When the territories became states, however, travel between them and the continental United States was no longer overseas transportation and the rates were abandoned. The present military standby tariffs here under consideration were first submitted in essentially their present form and were authorized by the Board on a temporary basis in 1963. See American Airlines Military Fares, 38 C.A.B. 1038 (1963). Those tariffs provided for a fifty percent reduction in jet coach rates and applied to military personnel traveling in uniform on furlough, leave, or pass. Carriage under the tariff was on a standby basis, and passengers were to be accommodated only in empty coach seats. The expiration dates for those tariffs were set in early 1965. Subsequent extensions expanded the service to its present state. The complaints of the petitioners in the instant proceeding were directed at tariffs filed by twenty air carriers proposing an indefinite extension of the military standby tariff. Reduced rates for youths under twelve have traditionally been a part of the rate scheme in the transportation industry. In 1961 the Board first approved reduced fares for youths between the ages of 12 and 22 as a promotional experiment. Those tariffs provided for a fifty percent reduction in fare and permitted the making of reservations within three hours of flight time. Shortly after the tariffs went into effect they were abandoned by the trunkline air carriers because of operating difficulties caused by the tariffs. Several local service carriers, however, continued the reduced rates, and they are still in effect today. In December 1965, American Airlines, Inc. filed the youth standby tariff here in question. On the same day, Allegheny Airlines filed its young adult tariff. Neither tariff contained an expiration date. Complaints were filed against the youth tariff of American by five competing airlines, the American Society of Travel Agents, and the petitioners. Only the petitioners filed a complaint against Allegheny’s young adult tariff. The complaints in both cases sought suspension and investigation of the tariffs. The Board in dismissing the complaints limited its approval to an experimental one year period. It also required the carriers to file quarterly reports containing statistical data and evaluations of the effectiveness of the tariffs. The petitioners alleged before the Board and assert here on review that the tariffs are unreasonable and unjustly discriminatory in violation of the Federal Aviation Act of 1958 (FAA). They contend that the tariffs are unreasonable and uneconomic because they are not reasonably related to the fully allocated cost of transportation. They also contend that Allegheny’s young adult tariff is unreasonable because there is no cost savings to the air carrier which would justify the reduced fare. They further allege that the young adult tariff is incapable of generating enough additional traffic to overcome the diversion from normal regular fare traffic and that the tariff is therefore not justified under the profit-impact test advanced by the Board. The petitioners also assert that the fares are unjustly discriminatory because they are based solely on the identity of the traffic, which is “like” all other passenger traffic, and that the factors upon which the Board granted relief in approving the tariff were beyond the scope of its competence because such factors did not relate to carriage. It is alleged that the standby features of the military and youth tariffs do not differentiate the service from regular service in view of the low average load factors on most domestic flights; it is also pointed out that the reservation feature of the young adult tariff eliminates even that minor difference. In addition, the petitioners contend that the identification card requirement of the youth and young adult tariffs do not distinguish the service or serve as a valid distinction as compared with other promotional fares. Thus, the petitioners conclude, the tariffs offer like service to like traffic under the same or similar circumstances at a reduced rate and are therefore unjustly discriminatory in violation of § 404(b) of the FAA. In dismissing the complaints, the Board ruled that the standby provisions of the military and youth tariffs sufficiently distinguished the service from that offered regular fare passengers, that the fare was not based solely on the identity of the traffic but was justified, in the case of the military standby tariff, by the national defense considerations advanced by the Secretary of the Army, and, in the case of the youth fares, by the traditional discounts offered youths by the transportation industry and the promotional effects of the tariff. The Board further found that the tariffs fostered the financial position of the industry by increasing revenue, improving the utilization of equipment and ground facilities, and filling seats which otherwise would be vacant. With respect to the young adult fares, the Board again noted the industry tradition of granting discounts to youths, the promotional aspects of the tariff, the potential for greater utilization of air transportation by a significant segment of the population not now using air transportation, and the impecunious state of those eligible under the tariff. It also observed that authorizing the tariffs on a one year experimental basis conformed generally with the policy of allowing airline management to exercise its discretion more freely to improve air transportation and increase air carrier traffic. I. At the outset we are presented with an argument which basically questions the standing of the petitioners to challenge the tariffs in issue, although the government contends that we do not actually have to reach the question of whether the petitioners have standing in order to dispose of the case. Essentially, the Board asserts that the petitioners have not shown that the action of the Board in approving the tariffs here in question subjects those persons whose interest the relevant portions of the FAA were designed to protect to any substantial harm, and therefore, they can not object to the action of the Board. It argues that §§ 403(b) and 404(b) were intended to protect airline passengers, shippers, and communities served by air carriers from unjust discrimination, and undue and unreasonable preference or prejudice. The mere adverse economic impact of the approved tariffs on the petitioners, competitors of the air carriers, is an insufficient harm to warrant an investigation of suspension of rates. Indeed, the Board asserts that it need not even specifically consider the effect of a proposed rate on surface transportation in determining whether a proposed tariff satisfies the requirements of the sections in question. Since the petitioners have not shown that the orders sought to be reviewed have harmed those protected by the Act, they can not complain of the action of the Board in approving the tariffs. In summary, the Board concludes that it is somewhat anomalous to allow the petitioners to object to tariffs which have widespread support in the áir transportation industry and which have not been objected to by those not eligible to travel at the reduced rates offered under the tariffs. In Flying Tiger Line, Inc. v. CAB, 121 U.S.App.D.C. 332, 350 F.2d 462 (1965) the Court was presented with substantially the same issue as the one before us, albeit in a different factual background. There, Pan American World Airways, Inc. had filed a tariff which provided for the overseas carriage of military stores and impedimenta traveling under United States Government bills of lading for the Defense Department. Flying Tiger, a competing air carrier, filed a complaint charging that the rates were unjustly discriminatory as a matter of law in violation of § 404(b) in that they were dependent on the status of the shipper, i. e. the tariffs provided for preferential treatment of one shipper, the Federal Government. The Board dismissed the complaint without a hearing. In affirming the Board, the Court concluded that no abuse of discretion Ijad been shown as the complaint did not make out a plausible ease that the order would subject shippers, or other carriers to any substantial harm. 350 F.2d at 465 The Court held that the assertion by Flying Tiger that it was a “sometime shipper of freight over the routes covered by the tariff” did not satisfy the requirement that harm to shippers be demonstrated. It observed that the record did not disclose what, aside from its own equipment, Flying Tiger shipped. The government urges us to reach a similar conclusion and thusly avoid reaching the issue of whether the petitioners have standing. Sections 403(b) and 404(b) provided in general terms, that airline traffic, both passenger and cargo traffic, is to be treated equally by the air carriers. The sections are designed to insure that rates and services are offered on an equal basis to all who seek to use the air carriers. They were intended to protect the traveling public and were designed to effectuate the “rule of equality” in the air transportation industry. The granting of preferential and discriminatory rates in an indiscriminate manner was one of the abuses, among others, which gave rise to the passage of the Interstate Commerce Commission Act, New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 391-392, 26 S.Ct. 272, 50 L.Ed. 515, 521 (1906); Lichten v. Eastern Airlines, Inc., 189 F.2d 939, 941, 25 A.L.R.2d 1337 (2 Cir. 1951), and both that Act and the Civil Aeronautics Act of 1938, as re-enacted in the Federal Aviation Act of 1958, were enacted to halt those abuses. The Civil Aeronautics Board is charged under §§ 102 and 1002 of the Act with, inter alia, enforcing the provisions of §§ 403(b) and 404(b) to protect the public interest. Failure on the part of the Board to implement and enforce these provisions, of the Act, insofar as they relate to the transportation of passenger traffic, necessarily results in the preference of one class or group of passengers to the prejudice of another. As such, a harm to the traveling public results. The petitioners in seeking review of the action of the Board in approving the tariffs here in question, are acting in the interest of the public, and for the protection of a public right. Although it was early held that a litigant could assert only his own rights, and was barred from asserting the rights of others, see ICC v. Chicago, R. I. & P. Ry., 218 U.S. 88, 109, 30 S.Ct. 651, 54 L.Ed. 946, 957 (1910), and cases cited therein; see also Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938), subsequent decisions of the Supreme Court have substantially modified that rule insofar as review of administrative agency decisions is concerned. Thus, in FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940) the Court held that a competitor who was subject to adverse economic consequences as a result of an agency decision had standing under § 402(b) of the Federal Communications Act to contest the validity of an FCC order granting a new license to a competing station. The scope and the nature of the action brought by a competitor to obtain judicial review of agency action was further defined in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942) and FCC v. NBC (KOA), 319 U.S. 239, 63 S.Ct. 1035, 87 L.Ed. 1374 (1943). Those decisions made it clear that a competitor was empowered to challenge agency action as contrary to law, and that the competitor was vindicating the public interest and right rather than his own. His status as a competitor and the harm to which the agency action subjected him gave him the standing to seek judicial review, but in so doing he was acting for the public benefit. The rationale supporting the competitors right to bring such actions was fully explored and analyzed by Judge Frank in Associated Indus. v. Ickes, 134 F.2d 694 (2 Cir. 1943). It is unnecessary to belabor the question here. It suffices to observe that it is now a well established doctrine of broad application in the law of standing. See National Coal Ass’n v. FPC, 89 U.S.App. D. C. 135, 191 F.2d 462 (1951); see generally, 3 Davis, Administrative Law Treatise § 22.05 (1958). Section 1006(a) of the Federal Aviation Act of 1958, 49 U.S.C. § 1486 (1964) provides that “Any order, affirmative or negative, issued by the Board * * * under this Act * * * shall be subject to review by the courts of appeals of the United States or the United States Court of Appeals for the District of Columbia upon petition * * * by any person disclosing a substantial interest in such order.” Although the wording of this section varies from that of § 402(b) (2) of the Federal Communications Act under which Sanders Bros, was decided, we think it is broad enough to confer standing on the petitioners under the teachings of Sanders Bros. Cf. Alton R.R. v. United States, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586, (1942); The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924); National Coal Ass’n. v. FPC, supra, Seatrain Lines, Inc. v. United States, 152 F.Supp. 619 (Del.1957). Further, we believe that in the context of § 403(b) and 404(b) the petitioners have demonstrated, under the facts and in the circumstances of this case, a sufficient harm to the traveling public to warrant review. Thus, we find Flying Tiger factually distinguishable. The petitioners assert that the tariffs approved by the Board are uneconomic and unjustly discriminatory. To the extent that these allegations are established, a harm to the traveling public is established. Rates which are unjustly discriminatory violate the provisions of § 404(b) and result in the very harm it was designed to prevent. An unjustly discriminatory rate affords favored service to those eligible under the tariff, and deprives those not eligible of equal treatment. In addition, rates that are uneconomic and unreasonable injure the traveling public either by jeopardizing the financial stability of the air carriers, or by forcing those persons not eligible to travel at the reduced rate to bear a greater and undue portion of the costs of operation. This shifting of operating costs results in placing an oppressive burden on the portion of the public not afforded the reduced rates. Therefore, it seems abundantly clear that the petitioners have alleged sufficient harm to the public to justify judicial review of the action of the Board. II. The regulatory scheme created by the Civil Aeronautics Act of 1938, 52 Stat. 973, 977, and subsequently re-enacted in the Federal Aviation Act of 1958, 72 Stat. 731, applicable in this proceeding, is incorporated in sections 403 and 404. As previously indicated, these sections infuse the “rule of equality” into the regulatory policy controlling rates in the air transportation industry. Section 403(a) provides that all rates and fares charged by an air carrier for air transportation to any point served by it shall be filed with the Board. The first sentence of § 403(b) precludes an air carrier from charging any rate, fare, or from offering any rebate, dispensation, or free transportation, except as provided by a tariff filed with the Board pursuant to § 403(a). The second sentence of the section permits the air carriers, subject to terms and conditions established by the Board, to give free or reduced-rate transportation to certain enumerated classes of persons, generally those closely connected with the air carrier. Section 404(a) requires the air carriers to serve all those who reasonably request air transportation at reasonable rates and in a reasonably safe and adequate manner. Unjust discrimination, unreasonable preference or prejudice against passengers, shippers, terminals, or points served are precluded by § 404(b). The Board is empowered and charged under § 1002 with the responsibility of enforcing the foregoing requirements as well as other provisions of the Act. Section 1002 gives the Board the power, either upon the filing of a complaint or on its own motion, to suspend and investigate tariffs when there is a reasonable ground to believe that a violation of the Act has been established. Under the language of the section, the Board has broad discretionary powers with respect to whether to investigate or suspend a tariff, Nebraska Dept, of Aeronautics v. CAB, 298 F.2d 286 (8 Cir. 1962), and it may dismiss, without a hearing, a complaint which is valid on its face when “it is of the opinion that it does not state facts which warrant investigation.” Flight Eng’rs. International Ass’n. v. CAB, 118 U.S.App. D. C. 112, 332 F.2d 312 (1964). On petition for review, the scope of a reviewing court’s power is limited to a determination of whether the Board has abused its discretion. Pan American-Grace Airways, Inc. v. CAB, 85 U.S.App.D.C. 297, 178 F.2d 34 (1949). Thus, we are simply to determine whether the Board, in dismissing the complaints without a hearing, abused its discretion in concluding that the complaints failed to set forth sufficient facts to demonstrate that the tariffs in question violated the provisions of the FAA and did not require an investigation and possible suspension to protect the public interest. In dismissing the complaints the Board issued an order in each of the eases consolidated in this proceeding. The orders set forth the Board’s reasons for denying the petitioners the relief they sought. Since the complaints could be dismissed without a hearing, the order need only comply with the requirements of § 6(d) of the Administrative Procedure Act, 5 U.S.C. § 1005(d), and not with the more stringent requirements of § 8(b), 5 U.S.C. § 1007(b). We find that these orders more than meet the procedural requirements of § 6(d), and further or more elaborate findings were not required. It should be noted, however, that in determining whether the Board abused its discretion in dismissing the complaints, we are limited to the orders actually issued, and the rationale advanced therein. It is on the basis of these findings and rationale that we are to test the exercise of discretion by the Board. The petitioners contend first that reduced-rate transportation may be offered only to persons in those classes listed in § 403(b), and that reduced rates to any other class of persons is illegal per se. They assert that in enumerating the classes of persons to whom reduced rates may be granted, Congress intended to prohibit the granting of reduced rates to any other class of persons or any other traffic when the reduced-rate is offered on the basis of the identity or status of the traffic. Petitioners further urge since neither military personnel nor youths between ages of 12' and 22 are included in the classes of persons listed in § 403(b), the rates here in question are unlawful. The Board argues that § 403(b) permits air carriers to grant reduced rate transportation to those classes of persons listed in the section relatively free of Board control. In granting such transportation, it continues, an air carrier need not satisfy the requirements of § 404(b) and rates offered such persons may not be found violative of the strictures of § 404 (b). However, the Board contends that § 403(b) is not exclusive and that it does not preclude the offering of reduced-rate transportation to other persons, provided such transportation complies with the requirements of § 404(b). Thus, the list of persons to whom reduced-rate transportation may be given is illustrative and not exclusive. The petitioners base their contention mainly on the 1956 amendment to § 403 (b) which permitted reduced-rate transportation on a standby basis to members of the clergy, and the refusal of Congress in 1959 to amend § 403(b) to permit reduced-rate transportation to military personnel. They assert that in both instances it was the understanding of Congress that reduced-rate transportation must be construed to be exclusive in groups without an amendment of the statute. Thus, they conclude, the section must be construed to be exclusive in order to effectuate this clear manifestation of Congressional interpretation of the statute. As indicated earlier, reduced-rates for military personnel were permitted under Board regulation issued pursuant to § 403(b) for travel to Alaska and Hawaii. However, when these territories became states, travel between them and the continental United States was no longer “overseas” transportation, but became interstate transportation. As a result the Board could no longer authorize reduced-rates since the provision of § 403 (b) granting the Board authority to regulate overseas transportation was no longer applicable. To enable the air carriers to continue giving the reduced rates, the Board sought Congressional action in the form of an amendment to § 403(b). Congress refused to alter the section. From this refusal to act, and the earlier amendment with respect to members of the clergy, the petitioners infer that reduced rates may only be offered to those persons listed in § 403(b). We do not think such a conclusion need be drawn from either the amendment or from the refusal of Congress to amend the section. When § 403(b) was amended to permit reduced-rate service for members of the clergy and at the time the Board sought the amendment to allow the giving of reduced-rates to military personnel, a substantial question was raised, as it is now, whether air carriers could, consistent with § 404(b), offer such transportation. Prior to 1959 the Board had taken an extremely stringent line in enforcing the unjust discrimination provisions of § 404(b). See Capital Group Student Fares, 25 C.A.B. 280 (1957); Free and Reduced Rate Transp. Case, 14 C.A.B. 481 (1951); Tour Basing Fares, 14 C.A.B. 257, 259 (1951); Summer-Excursion Fare Case, 11 C.A.B. 218 (1950); ATC Fare Discounts, 29 C.A.B. 1344 (1959). On the basis of this decisional law, and the approach of the Board to the problems of unjust discrimination, the Board might well have concluded that such reduced fares were likely to be unjustly discriminatory. Therefore, in order for the air carriers to offer such rates an amendment to § 403(b) would have been required. Viewed in this context, the refusal of Congress to amend the section does not require us to construe the section as an exclusive limitation on the granting of reduced-rates. Rather, it merely indicates that where a reduced rate is violative of § 404(b), the class of persons to ■whom the rate is offered must be among the enumerated classes in § 403(b). This analysis comports with the interpretation of the section by the Board as it indicates that reduced rates may be offered to the classes listed in § 403(b) with impunity and irrespective of any possible violation of § 404(b). Thus, we conclude that the legislative history of the Board’s unsuccessful attempt to amend § 403(b) does not vitiate, but rather strengthens, the construction of § 403(b) and 404(b) by the Board. See American Trucking Ass’n v. Atchison, T. & S. F. Ry., 387 U.S. 397, 87 S.Ct. 1608, 18 L.Ed.2d 847 (May 29, 1967). Further, the Board has consistently reviewed under § 404(b) tariffs which proposed reduced-rates for groups or classes or persons not included in the § 403(b) listing, e. g., Nonpriority Mail Rate Case, 34 C.A.B. 143 (1961); Certified Air Carrier Military-Tender Investigation, 28 C.A.B. 902 (1959); Capital Group Student Fares, 26 C.A.B. 451 (1958), and early held that § 403(b) was not an exclusive list of persons to whom reduced-rate transportation may be afforded. Airline Pass Agreement, 1 C.A.B. 677 (1940) (Dictum); ATC (1956) (concurring opinion); American Resolutions re Travel Agents & Tour Conductors, 31 C.A.B. 990, 992 (1959). While the construction of an enabling statute by an administrative agency is not binding on the courts, it is entitled to great weight. Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124, 125 (1944); United States v. American Trucking Ass’n., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). It is the interpretation of the intent of Congress by those charged with effectuating that intent. In addition, the administrative agency is continually involved and vitally concerned with the operation of the statute; the expertise developed through its intimate contact with the problems of the area and the operation of the statute should not lightly be ignored. See American Airlines, Inc. v. C.A.B., 97 U.S.App.D.C. 324, 231 F.2d 483, 488 (1956) (concurring opinion); American Airlines, Inc. v. CAB, 178 F.2d 903 (7 Cir. 1949). In the instant case the Board’s construction of the statute is not only a reasonable one but it is generally consistent with the construction given the analogous section 22 of the Interstate Commerce Commission Act, 49 U.S.C. § 22 (1964); see Nashville C. & St. L. Ry. v. State of Tennessee, 262 U.S. 318, 43 S.Ct. 582, 67 L.Ed. 999 (1923); ICC v. Baltimore & O.R.R., 145 U.S. 263, 12 S.Ct. 844, 36 L.Ed. 699 (1892); Tennessee Prod. & Chem. Corp. v. Louisville & N.R.R., 319 I.C.C. 497 (1963). Since the Civil Aeronautics Act of 1938 was modeled after the I.C.C. Act, the latter provides an appropriate guide in construing the section before us. Cf. American Airlines, Inc. v. North American Airlines, Inc., 351 U.S. 79, 82, 76 S.Ct. 600, 100 L.Ed. 953, 960 (1956) ; ICC v. Delaware, L. & W. R.R., 220 U.S. 235, 31 S.Ct. 392, 55 L.Ed. 448 (1911). In discussing the interpretation to be given to section 22 in relation to sections 2 and 3 of the Act, the portions of the Act analogous to § 404, the Supreme Court said: “The unlawfulness defined by sections 2 and 3 consists either in an ‘unjust discrimination’ or in an ‘undue or unreasonable preference or advantage,’ and the object of section 22 was to settle beyond all doubt that the discrimination in favor of certain persons therein named should not be deemed unjust. It does not follow, however, that there may not be other classes of persons in whose favor a discrimination may be made without such discrimination being unjust.” ICC v. Baltimore & O.R.R., supra, 145 U.S. at 278, 12 S.Ct. at 848, 36 L.Ed. at 704. It is therefore clear that the construction of the analogous section 22 is consistent with the Board’s construction of section 403(b). Although section 22 of the I.C.C. Act specifically provides for reduced rate transportation for military personnel, we do not think that fact undermines the correctness of the construction of section 403(b) advanced by the Board. Military personnel were included in section 22 by way of amendment after the railroads had offered reduced rate transportation to servicemen. The section was amended to insure the continuance of such transportation by precluding any determination that the reduced rates vio lated section 2 or 3 of the Act. See S Rep. No. 1141, 78th Cong., 2d Sess. 2 (1945); 90Cong.Rec. 7385 (1944). That Congress believed it necessary to include the provision in the section does not indicate that § 403 is exclusive. Nor do we believe that either Slick Airways, Inc. v. United States, 292 F.2d 515, 154 Ct.Cl. 417 (1961), or United States v. Associated Air Transp., Inc., 275 F.2d 827 (5 Cir. 1960) challenge the construction advanced by the Board. In both Slick and Associated the issue was whether the government was bound, under its contract with the air carriers for the carriage of military goods and personnel, by the tariff filed by the air carriers pursuant to § 403(a). The Court in both instances held that the tariff was controlling and the government was bound under its contract to pay the tariff rates. The cases are factually and legally distinguishable; they do not aid in the resolution of the issue before us. We agree with the conclusion of the Board that § 40 Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_caseorigin	032	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. SHIELDS v. ATLANTIC COAST LINE RAILROAD CO. No. 150. Argued January 19, 1956. Decided February 27, 1956. Truman M. Hobbs argued the cause for petitioner. With him on the brief was M. R. Nachman, Jr. Norman C. Shepard argued the cause and filed a brief for respondent. Robert W. Oinnane and C. H. Johns filed a brief for the Interstate Commerce Commission, as amicus curiae, supporting respondent. Mr. Justice Minton delivered the opinion of the Court. Petitioner, an independent contractor in the business of unloading gasoline, was instructed by the consignee to unload a tank car of gasoline which had been hauled by respondent Atlantic Coast Line and which was located at the time on a siding in respondent’s freight yards. In order to release the gasoline through a hose attached to the bottom of the car, it was necessary to go to the dome on top of the car, remove the dome cap, and open a valve inside the dome. While petitioner and his helper were engaged in opening the valve, the board on which they were standing broke and petitioner fell, sustaining injuries. There is no dispute that the board was defective. It was a wooden board over seven feet long attached to the side of the tank near the top just below the dome by means of two triangular steel braces extending from the side of the tank at either end of the board. The question presented here is whether this device, which for convenience we shall call a dome running board, is a safety appliance within the meaning of § § 2 and 3 of the Safety Appliance Act of 1910. Act of April 14, 1910, c. 160, §§ 2 and 3, 36 Stat. 298, 45 U. S. C. §§ H and 12. Petitioner brought suit in the District Court, alleging in one count of his amended complaint absolute liability for a violation of the Act and in a second count common-law negligence. The jury returned a general verdict in his favor. The Court of Appeals reversed and remanded for a new trial on the negligence count alone, holding that the trial court erred in instructing that the dome running board was a safety appliance. 220 F. 2d 242. We granted certiorari because of the importance of the questions raised as to the proper interpretation of the Safety Appliance Act. 350 U. S. 819. Section 2 of the Safety Appliance Act of 1910 provides in part: . . all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards . . . .” Section 3 provides: “That within six months from the passage of this Act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section two . . . and thereafter said number, location, dimensions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this Act, unless changed by an order of said Interstate Commerce Commission . . . and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this Act . Under the authority of § 3, the Commission in 1911 promulgated regulations still in force providing in detail for one running board running around the perimeter, or at least the full length of the sides, of tank cars. Such a board enables a trainman to walk the length of a tank car between cars adjoining it on either end. The regulations make no mention whatever by any name of dome running boards. Petitioner nevertheless contends that the dome running board is a required running board affording him protection under § 2. The obvious purpose of a dome running board is to provide a secure flooring for those who must perform operations in connection with the tank car dome. Clearly, the dome running board has major importance in loading and unloading operations. But a railroad man of over twenty-five years’ experience testified that it also may be used to stand on in order to pass hand signals or repair minor troubles occurring while the train is en route. The dome running board is an integrated part of the exterior equipment of a tank car; it functions as a permanently attached outside “floor” near the dome of the car. The testimony showed that railroad men, including respondent’s employees, often refer to the dome running board as a running board. We hold that it comes within the meaning of the term “running boards” as used in § 2. The fact that the Commission in its 1911 regulations under § 3 has not specified uniform standards for dome running boards is not a binding administrative determination that they are not running boards for the purposes of § 2. The reason for the omission is apparently the Commission’s view that only appliances affording safety while the train is moving need be standardized. But there is no showing that the regulations purport to exhaust by implication each category of statutory appliances listed in § 2. Omission of dome running boards of itself shows no more than that the Commission has not standardized all possible running boards within § 2. Davis v. Manry, 266 U. S. 401, is consistent with our view. There the Court itself interpreted the language in § 2 requiring grab irons “on their roofs” of “cars having ladders” to apply only to cars having roofs. It then pointed to the Commission’s failure to standardize a grab iron over a standardized ladder on a tender without a roof only as a supporting “practical construction” of the section. Moreover, the Commission in that case, having standardized the ladder, had no alternative but to interpret the statutory word “roofs” by either standardizing a grab iron or not standardizing it. Here no such practical construction is implied by the failure to standardize. Even if the dome running board be properly characterized as a running board, respondent contends that, since § 2 refers to “cars requiring . . . secure running boards,” the Commission’s failure to standardize dome running-boards under § 3 constitutes an administrative determination that they are not required within the meaning of § 2. The purpose of § 3 was to provide uniformity in the location and characteristics of those appliances upon which railroad men, working “always in haste, and often in darkness and storm,” must “instinctively” rely in the hazards of their employment. Illinois Central R. Co. v. Williams, 242 U. S. 462, 466. Effectuation of such a purpose would require standardization of running boards which extend the length of train cars. But considerations of administrative expertise relevant to § 3 are not equally applicable to the effectuation of the purpose of § 2. The purpose of the latter section was “to convert the general legal duty of exercising ordinary care to provide” safety appliances on cars “requiring [them] for their proper use” into a “statutory, an absolute and imperative duty, of making them ‘secure.’ ” Illinois Central R. Co. v. Williams, supra. The purpose of § 3 is to standardize the appliances required by § 2. But it does not follow that appliances necessary and furnished for the safe use of the car, although not standardized under § 3, are not within the sweep of § 2. Clearly, those who work on train cars may necessarily have to rely on the security of a dome running board, although the purposes of that appliance may not require any unhesitating reliance on its uniform characteristics. In the Williams case, supra, this Court held that the Commission’s statutory power to postpone the effective date of its standardization regulations under § 3 did not suspend the railroad’s duty under § 2 to make appliances secure. There was no question that the appliance in Williams was required, but the teaching of the case is that Commission action under § 3 does not exhaust the commands of § 2. See also Southern Pac. Co. v. Carson, 169 F. 2d 734, holding a railroad liable under § 2 for defects in an independent wooden club used to help turn a brake wheel where the wheel itself complied with the Commission’s regulations, which made no mention of the club. We conclude that failure of the Commission to standardize the dome running board need not mean that it was not a required running board under § 2. To hold otherwise would relieve railroads from the absolute duty under § 2 to make safety appliances secure whenever new appliances are adopted which have not yet been standardized by the Commission. Both the respondent and the manufacturer of the tank car considered that the dome running board was required for the proper use of the car. The railroad industry itself has recognized that tank cars require secure dome running boards. The Association of American Railroads safety appliance standards, largely identical to the Interstate Commerce Commission regulations, contain detailed uniform specifications for dome running boards, and compliance with those safety standards is required for interchange of cars between lines. Petitioner used the dome running board, not simply because it happened to be there, but also because it had to be there for him to perform his duties- safely, and performance of his duties was essential to the operation of the tank car. At best, appliances standardized in Commission regulations represent the minimum of safety equipment, and there is no prohibition of additional safety appliances. If a dome running board is provided by the railroad or the makers of the car and used by the railroad as an appliance necessary for the use of the car, it must be a safe board as required by § 2. Cf. Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 37. The Commission, in a brief filed here, contends that only appliances designed to insure safety while the train is in movement are within § 2, and, therefore, a dome running board cannot be a statutory running board. No case is cited to support this construction. Nothing in the language of § 2 itself or in its legislative history indicates that it should be read so narrowly. Whether or not an appliance is designed to afford protection while the train is moving may provide the Commission with an appropriate guide for deciding which appliances should be standardized under § 3. But there is no reason to import such a distinction into § 2 in order to deny the humane benefits of the Act to those who perform dangerous work on train cars that are not moving. Section 2 is not limited to such running boards as are required only-in the movement of the train. The dome running board here was required for the use of the car. Section 2 required it to be safe, although regulations pursuant to § 3 had not standardized it. There is no merit in respondent’s contention that, since petitioner is not one of its employees, no duty is owed him under § 2 of the Act. Having been upon the dome running board for the purpose of unloading the car, he was a member of one class for whose benefit that device is a safety appliance under the statute. As to him, the violation of the statute must therefore result in absolute liability. Coray v. Southern Pacific Co., 335 U. S. 520; Brady v. Terminal Railroad Assn., 303 U. S. 10; Fairport, P. & E. R. Co, v. Meredith, 292 U. S. 589; Louisville & N. R. Co. v. Layton, 243 U. S. 617. The judgment below must be reversed and the judgment of the District Court reinstated. Reversed. Mr. Justice Harlan took no part in the consideration or decision of this case. The action against Southern Railway Co., a co-defendant, as delivering carrier of the car was dismissed. Section 3 as it appears in the United States Code omits, presumably as executed, the language containing the statutory command to the Commission to make its original standardization regulations. 45 U. S. C. § 12. 49 CFR §§ 131.8 (b), 131.9 (c). 49 CFR § 131.7 covers “Tank cars with side platforms” and contains no provision for “running boards.” The car in question here does not come within § 131.7. See Car Builders’ Cyclopedia (18th ed. 1949-1951), 249-254, especially the diagrams, at 252-253, of a tank ear with a dome running board, there called a “dome platform,” similar to the present car. See also H. R. Rep. No. 37, 61st Cong., 2d Sess.; S. Rep. No. 250, 61st Cong., 2d Sess. 3. A. A. R. Safety Appliances for Tank Cars Built after May 1/ 1917, Car Builders’ Cyclopedia (19th ed. 1953), 938, 939-942. A. A. R. Code of Rules for the Interchange of Traffic (1952 ed.), Rules 3 (s) (1), 3 (r) (7). 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_genresp2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. METZGER v. SPECTOR MOTOR SERVICE, Inc., et al. No. 211. Circuit Court of Appeals, Second Circuit. May 5, 1941. Albert L. Lawrence, of Herkimer, N. Y., for appellant. David B. Sugarman, of Syracuse, N. Y. (Arthur W. Burrows, of Syracuse, N. Y., on the brief), for appellees. Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges. PER CURIAM. This is an appeal from the judgment of the District Court for the Northern District of New York, entered upon the verdict of the jury. The action was for personal injuries due to a collision between the defendant’s motor car and a car which the plaintiff was driving. At the conclusion of the evidence, the plaintiff did not ask for the direction of a verdict, but after the jury had brought in a verdict in favor of the defendants, moved to set it aside as against the weight of evidence. This the court denied and its order is the only question raised upon this appeal. The' jury could have found the following facts. On a rainy night in January the plaintiff, driving his car along the highway between Utica and Herkimer in the State of New York, was brought to a stop by a stalled motor truck on his side of the road. While he was waiting for other cars to pass which were coming in the opposite direction, the defendant’s truck ran into him from behind, causing the injuries in question. The excuse of the defendant’s driver was that, although he had on his “fog lights,” they did not light up the road far enough ahead for him to see the plaintiff’s car before it was too late. He had had to pull over to the right side of the road to let a car pass, whose bright lights blinded him and when he pulled back into his side of the road, he was within a few feet of plaintiff’s car. He was then moving at not more than sixteen or eighteen miles an hour. The plaintiff’s theory is that the law of New York makes it negligent without more to drive a motor car at a speed such that an obstruction ahead cannot be seen in time to stop. Albertson v. Ansbacher, 102 Misc. 527, 169 N.Y.S. 188. That case did not profess to lay down so absolute a rule, and we can find no evidence that it exists in New York; and indeed, the defendants’ explanation, if accepted, made a substantial variant. The denial of a motion to set aside a verdict presents a different question upon appeal from the denial of a motion for a directed verdict at the close of the evidence; except in the most unusual circumstances it is not appealable. Crumpton v. United States, 138 U.S. 361, 363, 11 S.Ct. 355, 34 L.Ed. 958; Van Stone v. Stilwell & Bierce Mfg. Co., 142 U.S. 128, 134, 12 S.Ct. 181, 35 L.Ed. 961; Moore v. United States, 150 U.S. 57, 61, 62, 14 S.Ct. 26, 37 L.Ed. 996; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 248, 60 S.Ct. 811, 84 L.Ed. 1129; O’Donnell v. New York Transportation Co., 2 Cir., 187 F. 109, 110. Certainly there was nothing in this case which would justify us in upsetting the discretion of the trial judge. Appeal dismissed. Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. COOPER AGENCY, INC., et al., Appellants, v. Harold M. McLEOD, District Director of Internal Revenue and United States of America, Appellees. No. 9871. United States Court of Appeals Fourth Circuit. Argued May 4, 1965. Decided Aug. 4, 1965. Robert J. Thomas and N. Welch Mor-risette, Jr., Columbia, S. C. (Gedney M. Howe, Jr., Arthur G. Howe, Charleston, S. C., Tompkins, McMaster & Thomas, and Cooper, Gary, Nexsen & Pruet, Columbia, S. C., on brief), for appellants. George F. Lynch, Attorney, Department of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson and Meyer Rothwacks, Attorneys, Department of Justice, and Terrell L. Glenn, U. S. Atty., on brief), for appellees. Before HAYNSWORTH, Chief Judge, and BOREMAN and BRYAN, Circuit Judges. PER CURIAM: The plaintiffs seek to test their tax liabilities in an action for an injunction and for removal of the cloud cast upon their properties by the tax liens. The judgment of the District Court dismissing these complaints is affirmed for the reasons stated by the District Judge We recently considered similar contentions and held them unavailing. At about the same time the Second and Third Circuits arrived at the same conclusion. Affirmed. . 235 F.Supp. 276. . Broadwell v. United States, 4 Cir., 343 F.2d 470. . Falik v. United States, 2 Cir., 343 F.2d 38; Quinn v. Hook, 3 Cir., 341 F.2d 920. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HASBRO INDUSTRIES, INC., Respondent, Local 26L, Graphic Arts International Union AFL-CIO, Intervenor. No. 81-1227. United States Court of Appeals, First Circuit. Argued Sept. 17, 1981. Decided Feb. 3, 1982. Christine Weiner, Washington, D. C., with whom William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Peter M. Bernstein and Lawrence J. Song, Washington, D. C., were on brief, for petitioner. Roger S. Kaplan, New York City, with whom Neil M. Frank, Jo-Anne P. Morley, and Jackson, Lewis, Schnitzler & Krupman, New York City, were on brief, for respondent. Eugene Cotton, Chicago, Ill., with whom Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., was on brief, for intervenor. Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MURRAY, Senior District Judge. Of the District of Massachusetts, sitting by designation. LEVIN H. CAMPBELL, Circuit Judge. The National Labor Relations Board petitions for enforcement of its order finding Hasbro Industries, Inc. guilty of unfair labor practices and ordering it to bargain with Local 26L, Graphic Arts International Union, AFL-CIO (the Union). Hasbro manufactures and distributes toys, printed materials and related products. It has four facilities in New England, but the dispute before us relates only to a group of printing employees at its main plant located on Newport Avenue, Pawtucket, Rhode Island. One of the principal operational divisions there was the packaging and box-making department, managed by Mr. Sidney Feldman and manned by approximately 45 employees. Within that department was a printing section, consisting at first of 18, and later 15, employees. It is these printing employees with whom we are here concerned. On January 24, 1977, the Union wrote Hasbro requesting recognition as the bargaining agent of its printing and lithographic employees based on authorization cards signed by 11 of the 18 employees then in the printing section. On the same day, the Union initiated a representation proceeding before the Board. A few days later, Hasbro advised the Union that its representation claim would have to await the outcome of that Board proceeding. After a hearing on the Union’s petition, the Regional Director determined that the printing unit was appropriate and directed an election. As noted, this unit had 18 employees initially, but by the time of the election it had only 15 by reason of a reduction in force. Originally scheduled for June 1977, the election was postponed at Hasbro’s request pending Board review of the Regional Director’s decision. That decision was affirmed on or about November 21, 1977, and the election was finally held on December 16, 1977, resulting in seven votes for and eight votes against the Union. (Three additional votes cast by employees who had been laid off as the result of the reduction in force were challenged by Hasbro and invalidated by the Board.) On December 22, 1977, the Union filed objections to the election. These were sustained by the Regional Director on February 6, 1978, who ordered a second election. On February 16, 1978, the Union filed unfair labor practice charges against Hasbro, and the second election was deferred pending determination of these. Hearings before an administrative law judge (ALJ) were held in 1978 and 1979 on these and later-filed charges, and the ALJ rendered an opinion in August 1980. While rejecting several of the General Counsel’s charges, the ALJ found that Hasbro had committed a series of unfair labor practices, both before and after the election, in violation of section 8(a)(1) of the Act. 29 U.S.C. § 158(a)(1). He further found that Hasbro’s refusal to bargain with the Union violated section 8(a)(5), 29 U.S.C. § 158(a)(5), and that its conduct was such as to make the holding of a fair election impossible. He accordingly recommended, in addition to cease and desist orders and the posting of notice, that a Gissel order be entered, directing Hasbro to bargain With the Union, as representative of its printing employees. The Board substantially accepted the ALJ’s findings and recommendations, and this enforcement proceeding followed. Hasbro now challenges the Board’s findings and rulings, asserting that they are unsupported in fact and legally incorrect. In reviewing the Board’s action, we shall first consider its findings of section 8(a)(1) violations, and, at the end, shall consider whether the bargaining order was warranted. THE UNFAIR LABOR PRACTICES 1. Wage Increases to Three Employees before the Election Wage increases were granted to three unit employees — Moreira, Tinley and Goyette — on November 28, 1977. The election was thereafter held on December 16, 1977, that date having been announced on November 21, 1977. The ALJ found that these increases violated section 8(a)(1) because “expressly timed to influence employees in the election.” Hasbro responds by pointing out that the increases had been scheduled towards the beginning of 1977 and were therefore merely the consummation of earlier plans made entirely without reference to the election. The evidence is undisputed that on January 10, 1977, Mr. Feldman, the department manager, scheduled, and listed on the payroll, projected wage increases for Tinley and Moreira. He did the same for Goyette sometime in April 1977, when Goyette was reclassified to a higher grade. Feldman’s notations indicated that during 1977 Moreira would go from $4.60 to $5.40 in three steps: a 30-cent increase on February 1, 1977; a 25-cent increase on August 1,1977; and a 25-cent increase on December 1, 1977. Tinley was listed as going from $3.45 to $3.90 in two steps: a 20-cent increase on July 1, 1977, and a 25-cent increase on December 1,1977. Goyette was listed as being entitled to three increases: 20 cents on July 20,1977; 20 cents on October 20, 1977; and 25 cents on November 20, 1977. The record shows that in the case of Moreira and Tinley the planned raises were all implemented within a short time of the scheduled dates. Goyette’s schedule was similarly implemented, except the increase slated for October 20, 1977, was inexplicably omitted. The raises here challenged— all put in effect on November 28 — were those scheduled for Moreira and Tinley on December 1, and for Goyette on November 20. We think there is insufficient evidence to support the ALJ’s finding that the increases were “timed” to influence the election. The timing had been determined long before the election was scheduled, and the Company had thereafter followed its schedule with a considerable degree of fidelity. The ALJ, indeed, did not question the Company’s evidence showing that the increases for Moreira and Tinley had been projected before the Union had requested recognition, and, for Goyette, reflected an increase in grade and was planned well before anyone knew there would be an election in mid-December of 1977. Nor is there any doubt that the dates originally scheduled for implementing the raises preceded the election by some several weeks. Under these circumstances, we see no basis for holding that the raises on November 28 were improper under the Act. Conferral of employee benefits while a representation election is pending for the purpose of inducing employees to vote against the Union interferes with the employees’ protected right to organize, NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). However, the presumption of illegality of wage increases and other benefits granted during the pendency of a union election is negated if the employer establishes that the conferral and announcement of such benefits are consistent with established company practice or were planned and settled upon prior to the initiation of the Union’s organization campaign. Louisburg Sportswear Co. v. NLRB, 462 F.2d 380, 384 (4th Cir. 1972); NLRB v. Otis Hospital, 545 F.2d 252, 255 (1st Cir. 1976) (where the prospective benefits were already incorporated in the existing terms and conditions of employment, an employer could grant the benefits without fear of violating section 8(a)(1)). Here there can be no serious contention that the wage increases were not part of an established company procedure. In fact, the ALJ found that “at some point” the three individuals would have received the raises. The Board’s unfair practice finding seems to have entirely rested on its surmise that the timing of the wage increases was advanced to before the election so as to influence its result. This would have been improper. NLRB v. Styletek, 520 F.2d 275 (1st Cir. 1975). But in a case such as Styietek, “the company was unable to pinpoint a conclusive reason that justified this particular timetable.” 520 F.2d at 281. Hasbro, to the contrary, has demonstrated “a conclusive reason,” in the form of a predetermined schedule, which called for making the increases when they were in fact made. Although the Board argues otherwise, the evidence does not permit a reasonable inference that Hasbro had, in the past, ordinarily ignored that schedule. The Board’s own rule, as noted in Styletek, is that when a representative election is pending, the employer should act as if the Union were not on the scene. 520 F.2d at 281 n.5. Here, Hasbro demonstrably did just that. Indeed, had it withheld the increases until after the election, it would have deviated from this rule. Accordingly, we find that the Board has failed to sustain its burden of showing that the timing of the wage increases was intended to interfere with the employees’ exercise of their right to choose the Union as their bargaining representative. 2. Coercive Letters Hasbro sent many letters to its printing employees in the brief period before the election urging them to weigh carefully their votes and suggesting strongly that a vote for the Union was not in their best interest. Two of these letters were found by the Board to contain improper threats of reprisal or force or promise of benefit and hence to exceed the free speech rights conferred upon employers by section 8(c) of the Act, 29 U.S.C. § 158(c). Section 8(c) provides, The expressing of any views, argument, or opinion, or the dissemination thereof . .. shall not constitute or be evidence of an unfair labor practice under ... this subchapter, if such expression contains no threat of reprisal or force or promise of benefit. [Emphasis supplied.] In one letter, dated December 5, 1977, Hasbro listed various benefits it provided, such as educational assistance, scholarship aid for employees’ children, blood bank, credit union, and the service award program. It then warned against “the real risks which you and your family may face if you make the wrong decision” (emphasis supplied) in the election of December 16. The letter went on to say, “If the Union is successful, the possibility that you and your family may be harmed if there are negotiations causes me great concern.” The “dangers” listed from negotiations included the risk that wages and benefits now enjoyed might be lost, the possibility that Hasbro would not reach an agreement with the Union, the possibility of being forced to go on strike and receive no paycheck every Friday, the possibility of being permanently replaced as the result of a strike, and the hardship faced “if the tragedy of a strike should occur.” The second challenged letter was dated December 12, 1977. It stated, “if the Graphic Arts Union gets in here, you risk losing” 28 described benefits, including “Fair wages” and “Overtime pay” and such other items as health and medical coverage, pension plan, paid vacations and holidays, Christmas bonus, personal leave, and lunch and break periods. Line-drawing in this area is not easy, but we think the Board acted within principles laid down by the Court in NLRB v. Gissel, 395 U.S. at 616-20, 89 S.Ct. at 1941-1943, in ruling that these letters went too far. The Court in Gissel said that even a sincerely held prediction by the employer of the consequences of voting in the Union may become a retaliatory threat if not “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control. ... ” 395 U.S. at 618, 89 S.Ct. at 1942. Certainly the instant letters point to no objective facts supporting the dire projections therein. These projections were, to be sure, labelled as possibilities, not absolute predictions, but their probability was so emphasized that we think the message could be viewed as tantamount to a prediction. Gissel makes clear that the touchstone for determining whether an employer’s message is predictive or retaliatory is not simply its literal meaning but rather its overall “import” in the employment setting. 395 U.S. at 617, 89 S.Ct. at 1941. The utterance’s implications and nuances are thus highly relevant. The December 5 letter spoke of the vice-president’s “personal concern” lest the employee and his family face “real risks" (underscored) if he makes “the wrong decision.” It went on to emphasize the vice-president’s concern over the “possibility that you and your family may be harmed if there are negotiations.” The risks the employee faced, the letter continued, included possible loss of wages and benefits, the “tragedy” of a strike, and possible “permanent replacement.” While this litany can be read as projecting an honest belief that the Union will be so irresponsible and unresponsive to its members’ interests as to bring about such things entirely on its own, it can also be considered a covert message that, if the Union comes in, Hasbro will fight it, and its pro-union employees, tooth and nail, provoking confrontations which will result in lost benefits, strikes and the replacement of pro-union employees. In Gissel, the Court criticized as improper an employer’s “basic assumption [expressed in messages to employees] that the Union, which had not yet even presented its demands, would have to strike to be heard.” 395 U.S. at 619, 89 S.Ct. at 1942. These letters convey a similar basic assumption. The second letter, dated December 12, 1977, went to the extreme of listing basics such as “fair wages” and overtime, health and pension benefits, as among 28 specific items which the employees risked losing if they voted in the Union. The ALJ concluded that the letter was so one-sided as to go beyond merely stressing that, as bargaining was a two-sided affair, it might result in diminution of existing benefits as well as the possibility of increased benefits. Rather the letter implied, or so the Board felt, that the Company would retaliate against unionization by withdrawing benefits if it could. It is within “the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.” 395 U.S. at 620, 89 S.Ct. at 1943. See, e.g., NLRB v. Marine World USA, 611 F.2d 1274, 1277 (9th Cir. 1980). Here the ALJ found that certain of Hasbro’s letters were proper and that these two were not. Some of the letters exonerated by the ALJ were themselves borderline. The ALJ’s determination seems to us to reflect a conscientious choice and to fit reasonably within the section 8(c) guidelines set out in Gissel. We are therefore constrained to affirm the Board’s findings. 3. Interrogation of Employee Pasadas by Two Hasbro Executives Antonio Pasadas, a unit member, met with two of Hasbro’s vice-presidents in the employer’s cafeteria on December 13, 1977, three days before the election. The ALJ found that Pasadas was asked why he wanted the Union; this the ALJ found to be coercive and violative of section 8(a)(1). Hasbro challenges the ALJ’s crediting of Pasadas’s testimony rather than that of the two executives. Hasbro emphasizes Pasadas’s language difficulties (a standby interpreter was used before the ALJ, although Pasadas answered in English most of the time), and points to the categorical denial by its executive of having asked Pasadas why he wanted a union. The ALJ said he credited Pasadas because his testimony was consistent and because of a record of the conversation he purportedly wrote later (although the value of this note is itself in dispute). We find nothing in the record which would warrant overruling the ALJ’s determination of credibility. The Company’s own witnesses were not in every respect consistent. Particularly where Pasadas’s grasp of English was an issue, the ALJ was in the best position to judge. Credibility judgments are not an exact science, and can be abused; but the answer does not lie in remaking them at an appellate level unless it is clearer than it is here that error was committed. Hasbro contends that even accepting Pasadas’s version of events in toto, there is insufficient evidence that what was said was coercive. Questioning an employee regarding his union sentiments is not per se violative of section 8(a)(1). The issue is whether the effect of the questioning is to restrain or coerce the employee in the exercise of his organizational rights under section 7. Dow Chemical Co. v. NLRB, 660 F.2d 637 (5th Cir. 1981); Paceco v. NLRB, 601 F.2d 180, 182 (5th Cir. 1979); NLRB v. Douglas Division, 570 F.2d 742, 745 (8th Cir. 1978); NLRB v. Otis Hospital, 545 F.2d 252, 256 (1st Cir. 1976). The entire factual context in which the language is spoken is relevant to determining its coercive effect. NLRB v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 806 (1st Cir. 1964); NLRB v. Otis Hospital, 545 F.2d at 256. See Paceco v. NLRB, 601 F.2d 180 (reflecting Fifth Circuit’s application of factors set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), as augmented). On this record, we believe the Board was entitled to find the interrogation coercive and violative of section 8(a)(1). The interrogators were both vice-presidents, high in the Company hierarchy. They initiated the meeting, which was held during working hours three days before the election. The object of their individual attention was a low-level employee of Portuguese background, who spoke English with difficulty. Being asked to tell, “Why I want the union. If I have some problem,” by such august persons, and in these circumstances, could convey a sense of pressure. The interview was conducted without explanation of the purpose for which the information sought would be used. While Pasadas was reassured that pro-union people would not be discharged after the election and to do what was best for himself and his family, the asking of these questions in this isolated setting to a single employee could fairly be considered coercive. 4. Feldman’s Remarks to Beaucage regarding Loss of Unit’s Work Sidney Feldman was manager of the 45-member packaging and box-making department of which the printing unit formed a part (comprising about one-third of its employees). The AU credited the testimony of Jean Beaucage, a unit member (and discredited Feldman’s denial) that on December 15, 1977, the day before the election, Feldman told him that Hasbro “would never let another union in here . . . they would farm out the work or barring that, they would close down the printing department for a year and take a business loss and reopen after a year.” (The ALJ also credited Beaucage’s testimony that in January 1978, Feldman said he “wasn’t kidding . .. about closing the plant down,” and would deny making the statement if asked.) The ALJ and Board found the December 15, 1977 statement to Beaucage to violate section 8(a)(1) (the January 1978 statement was not charged or treated as a separate violation). As we see no ground for rejecting the AU’s credibility finding, we are left only with whether Beaucage’s version of his conversation with Feldman supported the finding of a section 8(a)(1) violation. Beau-cage testified that Feldman asked to see him while Beaucage was sitting up on a press at work. Beaucage stopped what he was doing and got down. Feldman then asked, friend to friend, now that the campaign is winding down to its last final, hours, do you think ... the company would allow another union to come into the plant? Beaucage replied, “Yes,” indicating that he believed Hasbro could well afford it. He opined that Hasbro was only really worried about unionization spreading to the other departments. To this Feldman replied, “No,” going on to say, I don’t know what they’re going to do. They don’t tell me anything. But they would never let another union in here... . They would farm the work out before they would. When Beaucage expressed doubts as to Hasbro’s ability to farm the work out and maintain schedule, Feldman said, “if they had to, Hasbro would revamp the whole — ” “the rest of the shop and give it to an outside printing, if they had to.” Feldman went on to say that “barring that, they would close down the Print Department for a year and take a business loss, and reopen after a year.” Feldman’s parting remark, after Beaucage persisted in being skeptical, was, “You remember I said this.” We sustain the Board’s finding of violation. Feldman’s statement that the work would be farmed out cannot be defended as merely “a prediction as to the likely economic consequences of unionization.” NLRB v. River Togs, Inc., 382 F.2d 198, 201 (2d Cir. 1967). Economics were not mentioned, nor were any other factors outside Hasbro’s control. See NLRB v. Yokell, 387 F.2d 751, 756 (2d Cir. 1967). Rather the thrust of the statement was that Hasbro “would never let another union in here.... They would farm the work out before they would.” This was, in the words of Gissel, purely and simply an “implication that [the] employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him.” 395 U.S. at 618, 89 S.Ct. at 1942. It is true that Beaucage on cross-examination retreated somewhat from his direct testimony. He conceded that Feldman told him the Company and the Union would first bargain, and that “if a result was not reached .. . then they would farm the work out.” Even as so tempered, however, Feldman’s utterance could be read as implying that Hasbro would close the printing section after complying minimally with whatever legal obligations it had. We think an implied threat of retaliation could reasonably be drawn. We find no merit in Hasbro’s defenses that Feldman was a mere low-level supervisor engaging in a friendly chat, cf. Federal-Mogul Corp. v. NLRB, 566 F.2d at 1257, and that his disavowal of being privy to the Company’s plans reduced his remarks to the level of personal opinion. Feldman was manager of a 45-employee division of which Beaucage’s 15-man unit was but a part. There is no reason to believe that employees such as Beaucage regarded the division manager as less than an arm of management. The conversation, furthermore, was purposefully initiated by Feldman during working hours suggesting that it was no chance encounter. And the ALJ could properly give but little weight to Feldman’s disavowal of inside knowledge — his managerial position and the circumstances of the visit would speak louder than a pro forma disclaimer. We affirm the finding of section 8(a)(1) violation in this regard. 5. Surveillance of Mark Stanley The ALJ found that following the election (and a Christmas party) on December 16, Feldman said to bargaining unit employee Mark Stanley, “We know how you voted. They or I wouldn’t hold that against you, and that there’s three that I am out to get.. .. You know the three.” This was found to give the impression of surveillance of Stanley’s union activities and sentiments. As the Fifth Circuit said in NLRB v. Mueller Brass Co., 509 F.2d 704 (5th Cir. 1975), “surveillance” only violates the Act if, within section 8(a)(1), it tends to interfere with, restrain or coerce Union activities. Surveillance thus becomes illegal because it indicates an employer’s opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer’s anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc. Quoting Hendrix Manufacturing Co. v. NLRB, 321 F.2d 100, 104-05 n.7 (5th Cir. 1963). Given Stanley’s well-known adherence to the Union, the mere statement, “we know how you voted,” coupled with, “They or I wouldn’t hold that against you,” would seem harmless, falling within the rule that an employer’s mere “acknowledgment” of an employee’s union activity is not unlawful. NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 114 (1st Cir. 1978). But the additional language, “that there’s three I’m out to get,” changes the complexion. This threat suggests the Company is keeping track of union activity and is ready to hold it against employees generally even if not against Stanley at the precise moment. We think the remark sufficiently coercive in character to support the Board’s finding of violation. 6. Feldman’s Alleged Remarks to Enes, Pasadas and Moreira At the hearing before the ALJ, Enes, Pasadas and Moreira, who were bargaining unit employees, all testified that on December 16, 1977 — -after the election results were announced — manager Feldman told them, in effect, that the employees were lucky the Union had not won the election since if the unit were unionized the Company would close the printing department. Counsel for Hasbro did not object to this particular testimony, but at various points in the hearing, both before and after, he objected to the introduction of evidence of other incidents which, like this one, were not specifically mentioned or charged as violations in the complaint. The General Counsel insisted, however, that such evidence was relevant by way of “background” and to show animus towards the Union. On that basis, the ALJ admitted it, but on several occasions stated specifically that it would not be used as the basis of independent unfair labor practice findings because not charged in the complaint. The ALJ reiterated that position in his decision, noting that he had received such evidence on the General Counsel’s representation that it was for “background,” but would not utilize it to find violations not alleged. Noting that the General Counsel did not move to amend the complaint, and Hasbro did not seek to adduce evidence on such matters, the AU ruled that the additional matters were not fully litigated and that any findings of a violation with respect thereto would be improper. The Board nonetheless indicated that these purported remarks formed one of a number of incidents as to which the ALJ had found section 8(a)(1) violations, saying of all such supposed findings, “We agree.” It is hard to know what to .make of this. The Board could, of course, make additional unfair labor practice findings of its own in the absence of findings by the ALJ. The parties seem to believe that this is what the Board meant to do here. But the Board nowhere indicated that it was consciously making a finding of new unfair labor practice violations in place of the ALJ’s express silence. Rather it simply attributed to the ALJ a section 8(a)(1) finding he did not make and said that it agreed. We are unwilling to translate this into an independent Board finding for two reasons. First, the Board gave no indication of intending to make an independent finding— especially not one that flew in the face of its own ALJ. To the contrary, the Board thought it was sustaining its ALJ. Second, were the Board to have made a finding of its own, we have serious doubts that it could stand, given the ALJ’s express reassurances during the hearing, and later, that evidence of this character would not be used as the basis of an additional unfair labor practice violation. NLRB v. I. Posner, Inc., 304 F.2d 773, 774 (2d Cir. 1953). See also Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073-75 (1st Cir. 1981). Basic fairness would prevent the Board from going back on promises thus given. We accordingly do not accept the existence of any valid finding of a separate section 8(a)(1) violation based on this incident. We agree with the ALJ, however, that the testimony was properly received for its bearing on those charges that were under consideration, and on the bargaining order. 7. Wage Increases Granted to Unit Employees Following the Election The Board found that the Company violated section 8(a)(1) of the Act when on January 7, 1978, while objections to the election were pending, the Company granted wage increases to all bargaining unit employees. Although the Board conceded that general wage increases were granted by the Company each January, it nevertheless concluded that the increases following the election both far eclipsed those granted in the previous year and were substantially higher than those granted non-bargaining unit employees. The Company argues that the Board’s findings are erroneous since it failed to consider the Company’s reliance on an industry wage survey which revealed that, in the period preceding the 1978 wage increases, Hasbro’s salaries were below the industry mean. The ALJ did note and examine the wage survey upon which the wage increases were allegedly based. However, after examining the wage increases in the light of the wage survey, he concluded that the wages granted to the bargaining unit employees were not based solely on the recommendations of the industry survey but were granted in an attempt to both demonstrate to the unit employees that a union was unnecessary and erode support for the Union. In NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 459, 11 L.Ed.2d 435 (1964), the Supreme Court ruled that the conferral of employee benefits during the pendency of an election unlawfully interferes with the employees’ right to organize if the benefit is granted in an attempt to erode employee support for the Union. Post-election benefits granted while objections are pending or while there is a possibility of a rerun election may also be regarded as an unlawful interference with an employee’s right to support unionization. NLRB v. Styletek, 520 F.2d 275, 280 (1st Cir. 1975); NLRB v. Gruber’s Super Market, Inc., 501 F.2d 697, 701-03 (7th Cir. 1974); Luxuray of New York v. NLRB, 447 F.2d 112, 118-19 (2d Cir. 1971); General Teamsters and Allied Workers Local Union v. NLRB, 427 F.2d 582, 586 (D.C.Cir.1970). In NLRB v. Gotham Industries, Inc., 406 F.2d 1306 (1st Cir. 1969), this court articulated the preferred procedure for proving an “unlawful motivation” for a challenged wage increase or benefit. In Gotham, we ruled that in order for the Board to establish a section 8(a)(1) violation, it was incumbent upon the Board to show that the benefit was improperly motivated. If the Board was able to fulfill this initial requirement, the employer then was required to come forward with affirmative evidence of proper business justifications for the increase. If the employer was able to produce a proper business justification for the challenged wage benefit, it became incumbent upon the Board to show that the benefit was primarily motivated by an anti-union purpose. NLRB v. Gotham Industries, Inc., 406 F.2d at 1309; cf. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981) (where in an improper discharge case this court stated that while an employee may bear a burden of production to rebut the general counsel’s prima facie case the burden of persuasion at all times remains upon the Board). The Company argues that the wage increases were part of a long-standing Company policy to grant annual wage increases each January and that the amount of the increases was determined by the non-competitive nature of its wage levels compared to other companies participating in a local wage survey of industry wages, its profit position and ability to absorb costs, its labor contract settlements and several other factors. The ALJ, on the other hand, found that while the giving of wage increases was part of a long-standing Company policy that contained no anti-union purpose, the amount of the particular wage increases granted to bargaining unit employees so far exceeded the norm as to show an intention to erode the employees’ support for the Union. This improper motive was demonstrated by the fact that the increases granted to bargaining unit employees both were across-the-board increases unrelated to initial salaries and were significantly higher than the increases granted to most of the non-unit employees. Our review of the evidence leads us to conclude that there is sufficient record support for the AU’s finding that the Company’s stated justifications did not form the true motive for the challenged increases. The record reveals that both in terms of flat rate increases and as a percentage of current salary, the wage increases granted to bargaining unit employees were substantially 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_appel1_7_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). John C. WEBB and Helen H. Webb, Appellants, v. UNITED STATES of America, Appellee. No. 7658. United States Court of Appeals Fourth Circuit. Argued March 9, 1959. Decided March 11, 1959. John C. Webb, pro se, in support of motion. Martin A. Ferris, III, Asst. U. S. Atty., Baltimore, Md., in opposition. Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges. PER CURIAM. The appellants’ property having been condemned by the United States and a jury having awarded them $14,000 as just compensation, the landowners appealed to this Court, which affirmed the judgment. Thereafter a motion for a new trial was filed, based upon a claim of newly discovered evidence, but the United States opposed the motion, maintaining, among other contentions, that the District Court was without power to entertain such motion because the appellants were contemplating a petition to the Supreme Court of the United States for certiorari. Such petition was later filed and denied. The District Judge having suggested that to settle any doubt as to his authority in these circumstances to entertain the motion for a new trial, the appellants should petition this Court to grant leave to the District Court to entertain the motion, the present application was filed in this Court. Without intimating that Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., does not confer upon the District Court full authority to entertain the motion without leave of this Court, but in deference to the District Judge’s suggestion, leave is hereby granted the District Court to consider and dispose of the motion for a new trial now pending before it, and to have such other proceedings as the Court may deem appropriate. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
sc_caseorigin	124	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. Beverly R. GILL, et al., Appellants v. William WHITFORD, et al. No. 16-1161. Supreme Court of the United States Argued Oct. 3, 2017. Decided June 18, 2018. Misha Tseytlin, for Appellants. Erin E. Murphy, for Wisconsin State Senate, et al. as amici curiae supporting appellants. Paul Smith, Washington, DC, for Appellees. Brad D. Schimel, Attorney General, Kevin M. LeRoy, Deputy Solicitor General, State of Wisconsin, Department of Justice, Madison, WI, Misha Tseytlin, Solicitor General, Ryan J. Walsh, Chief Deputy Solicitor General, Amy C. Miller, Assistant Solicitor General, Brian P. Keenan, Assistant Attorney General, for Appellants. Jessica Ring Amunson, Jenner & Block LLP, Paul M. Smith, J. Gerald Hebert, Danielle M. Lang, Campaign Legal Center, Washington, DC, Michele Odorizzi, Mayer Brown, LLP, Nicholas O. Stephanopoulos, University of Chicago Law School, Ruth M. Greenwood, Annabelle E. Harless, Campaign Legal Center, Chicago, IL, Douglas M. Poland, Rathje & Woodward, LLC, Madison, WI, Peter G. Earle, Law Office of Peter G. Earle, Milwaukee, WI, for Appellees. Kathryn Cahoy, Covington & Burling LLP, Redwood Shores, CA, KeAndra Barlow, Covington & Burling LLP, Los Angeles, CA, Mark W. Mosier, Ryan Mowery, Alec Webley, Covington & Burling LLP, Washington, DC, for Amicus Curiae. Chief Justice ROBERTS delivered the opinion of the Court. The State of Wisconsin, like most other States, entrusts to its legislature the periodic task of redrawing the boundaries of the State's legislative districts. A group of Wisconsin Democratic voters filed a complaint in the District Court, alleging that the legislature carried out this task with an eye to diminishing the ability of Wisconsin Democrats to convert Democratic votes into Democratic seats in the legislature. The plaintiffs asserted that, in so doing, the legislature had infringed their rights under the First and Fourteenth Amendments. But a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has "a personal stake in the outcome," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), distinct from a "generally available grievance about government," Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (per curiam ). That threshold requirement "ensures that we act as judges, and do not engage in policymaking properly left to elected representatives." Hollingsworth v. Perry, 570 U.S. 693, 700, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. I Wisconsin's Legislature consists of a State Assembly and a State Senate. Wis. Const., Art. IV, § 1. The 99 members of the Assembly are chosen from single districts that must "consist of contiguous territory and be in as compact form as practicable." § 4. State senators are likewise chosen from single-member districts, which are laid on top of the State Assembly districts so that three Assembly districts form one Senate district. See § 5; Wis. Stat. § 4.001 (2011). The Wisconsin Constitution gives the legislature the responsibility to "apportion and district anew the members of the senate and assembly" at the first session following each census. Art. IV, § 3. In recent decades, however, that responsibility has just as often been taken up by federal courts. Following the census in 1980, 1990, and 2000, federal courts drew the State's legislative districts when the Legislature and the Governor-split on party lines-were unable to agree on new districting plans. The Legislature has broken the logjam just twice in the last 40 years. In 1983, a Democratic Legislature passed, and a Democratic Governor signed, a new districting plan that remained in effect until the 1990 census. See 1983 Wis. Laws ch. 4. In 2011, a Republican Legislature passed, and a Republican Governor signed, the districting plan at issue here, known as Act 43. See Wis. Stat. §§ 4.009, 4.01 - 4.99 ; 2011 Wis. Laws ch. 4. Following the passage of Act 43, Republicans won majorities in the State Assembly in the 2012 and 2014 elections. In 2012, Republicans won 60 Assembly seats with 48.6% of the two-party statewide vote for Assembly candidates. In 2014, Republicans won 63 Assembly seats with 52% of the statewide vote. 218 F.Supp.3d 837, 853 (W.D.Wis.2016). In July 2015, twelve Wisconsin voters filed a complaint in the Western District of Wisconsin challenging Act 43. The plaintiffs identified themselves as "supporters of the public policies espoused by the Democratic Party and of Democratic Party candidates." 1 App. 32, Complaint ¶ 15. They alleged that Act 43 is a partisan gerrymander that "unfairly favor[s] Republican voters and candidates," and that it does so by "cracking" and "packing" Democratic voters around Wisconsin. Id., at 28-30, ¶¶ 5-7. As they explained: "Cracking means dividing a party's supporters among multiple districts so that they fall short of a majority in each one. Packing means concentrating one party's backers in a few districts that they win by overwhelming margins."Id., at 29, ¶ 5. Four of the plaintiffs-Mary Lynne Donohue, Wendy Sue Johnson, Janet Mitchell, and Jerome Wallace-alleged that they lived in State Assembly districts where Democrats have been cracked or packed. Id., at 34-36, ¶¶ 20, 23, 24, 26; see id., at 50-53, ¶¶ 60-70 (describing packing and cracking in Assembly Districts 22, 26, 66, and 91). All of the plaintiffs also alleged that, regardless of "whether they themselves reside in a district that has been packed or cracked," they have been "harmed by the manipulation of district boundaries" because Democrats statewide "do not have the same opportunity provided to Republicans to elect representatives of their choice to the Assembly." Id., at 33, ¶ 16. The plaintiffs argued that, on a statewide level, the degree to which packing and cracking has favored one party over another can be measured by a single calculation: an "efficiency gap" that compares each party's respective "wasted" votes across all legislative districts. "Wasted" votes are those cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win. Id., at 28-29, ¶ 5. The plaintiffs alleged that Act 43 resulted in an unusually large efficiency gap that favored Republicans. Id., at 30, ¶ 7. They also submitted a "Demonstration Plan" that, they asserted, met all of the legal criteria for apportionment, but was at the same time "almost perfectly balanced in its partisan consequences." Id., at 31, ¶ 10. They argued that because Act 43 generated a large and unnecessary efficiency gap in favor of Republicans, it violated the First Amendment right of association of Wisconsin Democratic voters and their Fourteenth Amendment right to equal protection. The plaintiffs named several members of the state election commission as defendants in the action. Id., at 36, ¶¶ 28-30. The election officials moved to dismiss the complaint. They argued, among other things, that the plaintiffs lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative districts in which they vote. A three-judge panel of the District Court, see 28 U.S.C. § 2284(a), denied the defendants' motion. In the District Court's view, the plaintiffs "identif[ied] their injury as not simply their inability to elect a representative in their own districts, but also their reduced opportunity to be represented by Democratic legislators across the state." Whitford v. Nichol, 151 F.Supp.3d 918, 924 (W.D.Wis.2015). It therefore followed, in the District Court's opinion, that "[b]ecause plaintiffs' alleged injury in this case relates to their statewide representation, ... they should be permitted to bring a statewide claim." Id., at 926. The case proceeded to trial, where the plaintiffs presented testimony from four fact witnesses. The first was lead plaintiff William Whitford, a retired law professor at the University of Wisconsin in Madison. Whitford testified that he lives in Madison in the 76th Assembly District, and acknowledged on cross-examination that this is, under any plausible circumstances, a heavily Democratic district. Under Act 43, the Democratic share of the Assembly vote in Whitford's district is 81.9%; under the plaintiffs' ideal map-their Demonstration Plan-the projected Democratic share of the Assembly vote in Whitford's district would be 82%. 147 Record 35-36. Whitford therefore conceded that Act 43 had not "affected [his] ability to vote for and elect a Democrat in [his] district."Id., at 37. Whitford testified that he had nevertheless suffered a harm "relate[d] to [his] ability to engage in campaign activity to achieve a majority in the Assembly and the Senate." Ibid. As he explained, "[t]he only practical way to accomplish my policy objectives is to get a majority of the Democrats in the Assembly and the Senate ideally in order to get the legislative product I prefer." Id., at 33. The plaintiffs also presented the testimony of legislative aides Adam Foltz and Tad Ottman, as well as that of Professor Ronald Gaddie, a political scientist who helped design the Act 43 districting map, regarding how that map was designed and adopted. In particular, Professor Gaddie testified about his creation of what he and the District Court called "S curves": color-coded tables of the estimated partisan skew of different draft redistricting maps. See 218 F.Supp.3d, at 850, 858. The colors corresponded with assessments regarding whether different districts tilted Republican or Democratic under various statewide political scenarios. The S curve for the map that was eventually adopted projected that "Republicans would maintain a majority under any likely voting scenario," with Democrats needing 54% of the statewide vote to secure a majority in the legislature. Id., at 852. Finally, the parties presented testimony from four expert witnesses. The plaintiffs' experts, Professor Kenneth Mayer and Professor Simon Jackman, opined that-according to their efficiency-gap analyses-the Act 43 map would systematically favor Republicans for the duration of the decade. See id., at 859-861. The defendants' experts, Professor Nicholas Goedert and Sean Trende, opined that efficiency gaps alone are unreliable measures of durable partisan advantage, and that the political geography of Wisconsin currently favors Republicans because Democrats-who tend to be clustered in large cities-are inefficiently distributed in many parts of Wisconsin for purposes of winning elections. See id., at 861-862. At the close of evidence, the District Court concluded-over the dissent of Judge Griesbach-that the plaintiffs had proved a violation of the First and Fourteenth Amendments. The court set out a three-part test for identifying unconstitutional gerrymanders: A redistricting map violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment if it "(1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds." Id., at 884. The court went on to find, based on evidence concerning the manner in which Act 43 had been adopted, that "one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade." Id., at 896. It also found that the "more efficient distribution of Republican voters has allowed the Republican Party to translate its votes into seats with significantly greater ease and to achieve-and preserve-control of the Wisconsin legislature." Id., at 905. As to the third prong of its test, the District Court concluded that the burdens the Act 43 map imposed on Democrats could not be explained by "legitimate state prerogatives [or] neutral factors." Id., at 911. The court recognized that "Wisconsin's political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process," but found that this inherent geographic disparity did not account for the magnitude of the Republican advantage. Id., at 921, 924. Regarding standing, the court held that the plaintiffs had a "cognizable equal protection right against state-imposed barriers on [their] ability to vote effectively for the party of [their] choice." Id., at 928. It concluded that Act 43 "prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans," and that "Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights." Ibid . The court turned away the defendants' argument that the plaintiffs' injury was not sufficiently particularized by finding that "[t]he harm that the plaintiffs have experienced ... is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute." Id., at 930. Judge Griesbach dissented. He wrote that, under this Court's existing precedents, "partisan intent" to benefit one party rather than the other in districting "is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches." Id., at 939. He observed that the plaintiffs had not attempted to prove that "specific districts ... had been gerrymandered," but rather had "relied on statewide data and calculations." Ibid . And he argued that the plaintiffs' proof, resting as it did on statewide data, had "no relevance to any gerrymandering injury alleged by a voter in a single district." Id., at 952. On that basis, Judge Griesbach would have entered judgment for the defendants. The District Court enjoined the defendants from using the Act 43 map in future elections and ordered them to have a remedial districting plan in place no later than November 1, 2017. The defendants appealed directly to this Court, as provided under 28 U.S.C. § 1253. We stayed the District Court's judgment and postponed consideration of our jurisdiction. 582 U.S. ----, 137 S.Ct. 2268, 198 L.Ed.2d 698 (2017). II A Over the past five decades this Court has been repeatedly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines. Our previous attempts at an answer have left few clear landmarks for addressing the question. What our precedents have to say on the topic is, however, instructive as to the myriad competing considerations that partisan gerrymandering claims involve. Our efforts to sort through those considerations have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. Our first consideration of a partisan gerrymandering claim came in Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). There a group of plaintiffs challenged the constitutionality of a Connecticut redistricting plan that "consciously and overtly adopted and followed a policy of 'political fairness,' which aimed at a rough scheme of proportional representation of the two major political parties." Id., at 738, 93 S.Ct. 2321. To that end, the redistricting plan broke up numerous towns, "wiggl[ing] and joggl[ing]" district boundary lines in order to "ferret out pockets of each party's strength." Id., at 738, and n. 3, 752, n. 18, 93 S.Ct. 2321. The plaintiffs argued that, notwithstanding the rough population equality of the districts, the plan was unconstitutional because its consciously political design was "nothing less than a gigantic political gerrymander." Id., at 752, 93 S.Ct. 2321. This Court rejected that claim. We reasoned that it would be "idle" to hold that "any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it," because districting "inevitably has and is intended to have substantial political consequences." Id., at 752-753, 93 S.Ct. 2321. Thirteen years later came Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). Unlike the bipartisan gerrymander at issue in Gaffney, the allegation in Bandemer was that Indiana Republicans had gerrymandered Indiana's legislative districts "to favor Republican incumbents and candidates and to disadvantage Democratic voters" through what the plaintiffs called the "stacking" (packing) and "splitting" (cracking) of Democrats. 478 U.S., at 116-117, 106 S.Ct. 2797 (plurality opinion). A majority of the Court agreed that the case before it was justiciable. Id., at 125, 127, 106 S.Ct. 2797. The Court could not, however, settle on a standard for what constitutes an unconstitutional partisan gerrymander. Four Justices would have required the Bandemer plaintiffs to "prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." Id., at 127, 106 S.Ct. 2797. In that plurality's view, the plaintiffs had failed to make a sufficient showing on the latter point because their evidence of unfavorable election results for Democrats was limited to a single election cycle. See id., at 135, 106 S.Ct. 2797. Three Justices, concurring in the judgment, would have held that the "Equal Protection Clause does not supply judicially manageable standards for resolving purely political gerrymandering claims." Id., at 147, 106 S.Ct. 2797 (opinion of O'Connor, J.). Justice O'Connor took issue, in particular, with the plurality's focus on factual questions concerning "statewide electoral success." Id., at 158, 106 S.Ct. 2797. She warned that allowing district courts to "strike down apportionment plans on the basis of their prognostications as to the outcome of future elections or future apportionments invites 'findings' on matters as to which neither judges nor anyone else can have any confidence." Id., at 160, 106 S.Ct. 2797. Justice Powell, joined by Justice Stevens, concurred in part and dissented in part. In his view, the plaintiffs' claim was not simply that their "voting strength was diluted statewide," but rather that "certain key districts were grotesquely gerrymandered to enhance the election prospects of Republican candidates." Id., at 162, 169, 106 S.Ct. 2797. Thus, he would have focused on the question "whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends." Id., at 165, 106 S.Ct. 2797. Eighteen years later, we revisited the issue in Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004). In that case the plaintiffs argued that Pennsylvania's Legislature had created "meandering and irregular" congressional districts that "ignored all traditional redistricting criteria, including the preservation of local government boundaries," in order to provide an advantage to Republican candidates for Congress 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	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "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. The AETNA CASUALTY AND SURETY COMPANY, Defendant, Appellant, v. GUARANTY BANK AND TRUST COMPANY, Plaintiff, Appellee. No. 6797. United States Court of Appeals First Circuit. Heard Nov. 9, 1966. Decided Dec. 20, 1966. Richard Wait, Boston, Mass., and Elmer W. Beasley, Hartford, Conn., with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for appellant. Francis P. O’Connor, Worchester, Mass., with whom John P. Dunn, Worchester, Mass., was on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. OPINION OF THE COURT. McENTEE, Circuit Judge. The sole issue raised by this appeal is whether a loss suffered by plaintiff bank is within the coverage of a Bankers Blanket Bond which was in full force and effect between the bank and the defendant, Aetna, at the time the loss occurred. The trial court, sitting without a jury, found that the loss in question was within the coverage of the bond and entered judgment for plaintiff. Defendant’s appeal followed. The court’s findings are based for the most part on a statement of agreed facts filed by the parties. Plaintiff’s loss resulted from the peculations of one Morse who from 1956 until November 1961 was office manager of a Webster, Massachusetts firm known as Sandler-ette. This firm was a customer of the bank. One of Morse’s duties as office manager was to prepare for deposit checks received by and made payable to the company. This entailed placing a rubber stamp! endorsement on all such checks and delivering them to the bank for deposit, which he had authority to do. During the period above mentioned, Morse wrongfully cashed 172 of these checks, totalling some $810,000, and misappropriated the money to his own use. These checks were cashed by plaintiff bank and the money delivered to Morse over the counter, in exchange for the checks. The parties have agreed that when Morse telephoned the bank to arrange for delivery of the cash in exchange for the checks, wrongfully cashed, it was his intention to misappropriate this cash to his own use; that this was his intention when he went to the bank and obtained the cash; also that when this cash was delivered to Morse it was the intention of the teller or tellers to deliver it to him for the use and purposes of Sandlerette and that the teller or tellers made these deliveries of cash to Morse in reliance upon his representations over the telephone. It was further agreed that no one connected with Sandler-ette ever told any officer or teller of the bank that Morse had the right or duty to cash checks made payable to this company. Also that the two tellers who cashed most of these checks had been told by the bank and knew that they were not authorized to cash checks payable to corporate payees without special, authorization from an officer of the bank. Sandler-ette first learned of its office manager’s nefarious actions on November 28, 1961, and on that date alerted the bank. The next day (November 29), although not yet aware of the extent of the misappropriations, Sandler-ette made formal demand upon the bank for the amounts it had paid Morse in exchange for these checks. The bank, in turn, gave Aetna formal notice of claim by letter dated December 8, 1961. Sandler-ette lost no time in proceeding against Morse. Immediately, it brought a bill in equity against him, his wife and a corporation owned by them to trace the stolen money. As a result of the final decree entered in that case, certain assets standing in the name of this corporation were transferred to Sandlerette. Subsequently, the corporation went into bankruptcy and Sandler-ette realized on these assets in that proceeding. Thereafter, at the instance of his former employer, Morse was indicted and later pleaded guilty to charges of larceny. The bank not having complied with the above mentioned demand for payment, Sandler-ette brought suit against it to recover the proceeds of the checks it claimed the bank wrongfully paid to Morse. The parties in that ease entered into a stipulation in which they incorporated as exhibits the pertinent documents in the three actions above mentioned. This stipulation, together with said exhibits, by agreement of the parties is now part of the record in the instant case. With this background, we now focus our attention on defendant Aetna’s activities, particularly with reference to the Sandler-ette claim against the bank. The record indicates that with reference to this claim, Aetna was much more than a by-stander and had a real stake in the outcome of the litigation that followed. During the trial the bank notified Aetna that it could settle Sandlerette’s case for $130,000. Shortly thereafter the case was settled for that amount and a neither party agreement was filed in court. The bank then demanded indemnity against the payment of this settlement, plus counsel fees and expenses incurred in defending the Sandler-ette suit. Aetna refused to pay and thereupon the instant suit was commenced. For the purposes of this case, the losses covered by defendant Aetna’s bond are as follows: “(B) Any loss of Property [the term ‘property’ includes money] through robbery, burglary, common-law or statutory larceny, theft, false pretenses, holdup, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees. * * » Basically, the question of coverage of the bank’s loss in this case depends upon our determination of whose money was stolen. Aetna contends (1) that the money stolen by Morse was Sandler-ette’s money — not the bank’s and (2) that in any event the bank did not comply with the notice or proof of loss requirements of the bond, both of which are conditions precedent to recovery. Its principal argument in support of the first contention is that the decree entered in the above-mentioned equity suit, the order in the bankruptcy proceedings and the judgments of conviction judicially established that the money stolen by Morse belonged to Sandler-ette. From this Aetna concludes that the determinations made in these three actions were conclusive against the bank not only in the Sandler-ette suit but also in the instant suit. The short answer to this argument is that the plaintiff bank here was not a party nor was it privy to a party in any of these prior proceedings (nor was Aetna) and, therefore, is not bound by them. Aetna attempts in still another way to establish that the money stolen belonged to Sandler-ette. It advances the argument that when the parties in the instant case adopted the stipulation, entered into in the suit between Sandlerette and the bank, the facts stated in the exhibits attached to that stipulation were also accepted as proved — therefore the bank agreed that the money stolen belonged to Sandler-ette. From a mere reading of the stipulation it is plain that although the parties thereto agreed to accept as proved the facts stated in the stipulation, they agreed only to the existence and the authenticity of these exhibits, i. e., that they were true copies of the original documents. Thus, when the bank and Aetna adopted that stipulation they went no further than did the parties in the earlier case. Aetna argues that Sandler-ette ratified Morse’s unauthorized acceptance of the cash as a matter of law (1) by causing him to be prosecuted for larceny of its property and (2) by proceeding in equity to trace its misappropriated funds. Aetna maintains that by so doing, Sandler-ette treated the bank’s payments to Morse as payments to itself. From this it concludes that Sandler-ette was the owner of the proceeds of these checks and that the bank is thereby precluded from showing in this action that Morse stole its money. This argument appears to be predicated upon the theory that Sandlerette received some benefit by taking the action it did to have Morse prosecuted for larceny of its property. It is difficult to see how Sandler-ette in doing this received or accepted the kind of tangible benefit recognized for ratification purposes under Massachusetts law. Restatement, Agency 2d; Mass.Annot. § 98; Cambridgeport Sav. Bank v. City of Boston, 297 Mass. 309, 8 N.E.2d 790, 792 (1937); Accord, Kidder v. Greenman, 283 Mass. 601, 187 N.E. 42, 49, 88 A.L.R. 1370 (1933). Nor does Sandler-ette’s above-mentioned tracing action amount to a ratification as a matter of law. This suit is equally consistent with the theory that Morse gained possession of the checks in question by reason of his fiduciary relationship with his employer; that he wrongfully converted these checks to his own use, thus making him a trustee ex maleficio of the proceeds thereof for the benefit of Sandler-ette. Bresnihan v. Sheehan, 125 Mass. 11 (1878); cf. Berenson v. Nirenstein, 326 Mass. 285, 93 N.E.2d 610, 20 A.L.R.2d 1136 (1950). Since the final decree entered in that case recites only that Morse is indebted to Sandler-ette, we have no basis for inferring that any theory of recovery other than that above stated was relied upon. We are not impressed by Aetna’s further argument that the bank suffered no loss until it paid the $130,000 to Sandler-ette; that this being a judicially imposed liability, it is not a loss within the coverage of the bond. Clearly, every time Morse wrongfully cashed his employer’s checks, the bank paid out its money to him over the counter and thereby suffered a loss at that time. Eliot Savings Bank v. Aetna Casualty & Surety Co., 310 Mass. 355, 38 N.E.2d 59 (1941). The $130,000 settlement merely determined the total amount of the bank’s loss, sustained by reason of Morse’s earlier defalcations. The notice provisions of the bond read as follows: “At the earliest practicable moment after discovery of any loss hereunder the Insured shall give the Underwriter written notice thereof and shall also within six months after such discovery furnish to the Underwriter affirmative proof of loss with full particulars.” (Emphasis ours) With reference to the notice question, the parties agree that the bank “ * * has complied with the bond provisions relating to notice and proof of loss except that if the plaintiff [bank] was required thereby to furnish oral or written notice of proof of loss prior to November 29, 1961, no such notice or proof of loss was furnished by the plaintiff [bank] to the defendant [Aetna] prior to that date.” In our opinion the bank was not required to give notice or furnish proof of loss to Aetna prior to November 29, 1961. It learned of Morse’s unlawful conduct on November 28, 1961, upon receipt of a telephone call from Sandler-ette. As far as the bank is concerned, the time of discovery of a loss, within the meaning of the bond, was the next day (November 29) when the bank first received a written demand for payment from Sandler-ette. Therefore the earliest practicable time the bank could have given Aetna any notice or proof of loss was on that date. We, therefore, reject Aetna’s contention that the bank did not comply with the notice requirements of the bond. All other points raised have been considered and found to be without merit. Affirmed. . Originally this bond ran to the First National Bank of Webster, the original plaintiff in this case. Subsequently, all the rights of that bank were assigned to Guaranty Bank and Trust Company under a consolidation and the latter named Bank was substituted as plaintiff. . See district court’s opinion, First National Bank of Webster v. Aetna Casualty & Sur. Co., 256 F.Supp. 266 (D.Mass. 1966). . This judgment was for $138,725, plus interest. It was agreed by the parties that if the court decided for plaintiff it would be entitled to recover the amount of its loss ($130,000), plus $8,725 for expenses incurred in defending a prior suit arising out of this loss, plus interest. The prior litigation is discussed later on in this opinion. . During this period Morse cashed other cheeks at the bank but these were drawn by Sandler-ette and made payable to cash, petty cash or to named employees. They never exceeded $300. None of these cheeks are involved in this case. Although there were occasions when the bank paid out cash to Morse without prior arrangement, more often the cash was paid out after a telephone call from Morse to the bank. With reference to the smaller checks, above mentioned and also the checks which Morse wrongfully cashed, he would call the bank and state the amount of cash wanted and the specific denominations. On some occasions he would state that the cash was wanted for various company purposes which he described but on other occasions he said nothing as to why it was wanted. The teller would' then place the requested cash in envelopes with Sandler-ette’s name on them and notations of the amounts therein. When Morse came for the cash he would present a check or cheeks in the exact amount of the cash previously requested. These checks were totalled to see that they equalled the amount of cash in the envelopes. When this was done the envelopes were delivered to Morse. On the 172 checks wrongfully cashed, Morse signed his name (below the rubber stamp endorsement) as required by rule of the bank when cash is paid out on checks payable to corporate payees. It should be noted that Morse had no written authorization to sign, cash, or to endorse checks made payable to Sandler-ette except for deposit. . Only seven of these checks were cashed by a third teller — not included in the stipulation. . Of course none of the checks in question went through Sandler-ette’s account. They were processed by the bank and routed to the drawee banks for payment. Upon payment by the drawee bank, plaintiff bank did not credit Sandler-ette’s account. When the company billed a customer for merchandise sold, the original invoice was sent to the customer and copies were kept by the company for its records. Morse had access to these records and in most instances destroyed all copies of invoices in the case of customers whose checks he wrongfully cashed. Thus the company had no record of such invoices and in this way Morse was able to avoid detection for as long as he did. . Morse had spent a large part of the stolen money in the construction of a bowling alley complex through his alter-ego — the corporation. Some of it was spent on a house in which he and his wife lived. . The decree, order and judgments of conviction, as the case may be, entered in all three of these actions were founded on the proposition that the money stolen by Morse was Sandler-ette’s money. . This, suit was brought in the Superior Court of Massachusetts for Worcester County. '' . These included the bill of complaint and final decree in the equity case; a certain stipulation, order and petition in the bankruptcy proceeding and the records of the proceedings in the criminal cases against Morse. . Prior to the filing of Sandler-ette’s suit against the bank, Aetna attended numerous meetings with these parties. While that suit was pending the bank and Aetna conferred frequently regarding the conduct of the litigation. The bank tendered Aetna the defense of the suit but it refused to accept it. Also at numerous times during the trial the bank discussed settlement of the case with Aetna. . In reply, Aetna wrote the bank that in the event the bank concluded this proposed settlement and then sued Aetna on its indemnity bond, Aetna in that suit would not take the position that this proposed settlement was not fair, reasonable, bona fide or prudent and further agreed that the bank may treat the neither party agreement executed in settlement of the ease as the equivalent of a judgment for plaintiff in the Massachusetts Superior Court entered after a full trial. Aetna reserved its rights, however, on whether any loss claimed by the bank was covered by its bond. . Aetna’s bond also indemnified the bank against the payment of court costs, and reasonable attorney’s fees incurred in defending any suit against the bank arising out of any loss covered by the bond. The reasonableness of these expenses is not questioned in this case. . If the money stolen was Sandler-ette’s, the loss does not come within the coverage of this bond. . See footnote 10. . This demand was made by letter dated November 29, 1961, sent by certified mail —return receipt requested and presumably was received by the bank on that date. 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_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). Harry FREDMAN, Plaintiff-Appellant, v. HARRIS-HUB COMPANY, Inc., Defendant-Appellee. Harry FREDMAN, Plaintiff-Appellant, v. ESTEE SLEEP SHOPS, INC., Defendant-Appellee. Nos. 18210, 18211. United States Court of Appeals, Seventh Circuit. April 28, 1971. Morris Shenker, Bernard J. Mellman, Cordell Siegel, St. Louis, Mo., Harvey B. Jacobson, Jr., Washington, D. C., Gregory B. Beggs, Pendleton, Neuman, Williams & Anderson, Chicago, Ill., for plaintiff-appellant. R. Howard Goldsmith, Charles W. Ryan, Chicago, Ill., for defendants-appellees; Dressier, Goldsmith, Clement & Gordon, Chicago, Ill., of counsel. Before KILEY, PELL and STEVENS, Circuit Judges. STEVENS, Circuit Judge. In 1962, plaintiff invented a novel, sophisticated and valuable bed assembly which, by joining originally designed side rails at their centers with an interconnecting tension member, eliminated the need for wooden slats to support bed springs and solved significant problems associated with the use of conventional bed assemblies. His invention was clearly patentable. The questions presented are (1) whether claim 3 of his patent, which may be read to describe defendant’s crude device, is valid; and (2) whether defendant’s simple approach to the goal of slatless beds is sufficiently equivalent to the inventor’s to constitute infringement of claim 4 I. A description of the principal problems solved by plaintiff’s invention will identify the difference between the issues presented under claims 3 and 4. One of the most significant problems confronting bed manufacturers and users has been the use of slats extending between, and supported on, the bed’s side rails. Normally, three wooden slats were used. Quite often outward deflection of certain portions of the bed rails and downward deflection of the central portion of the slats would cause the slats to drop off the ledges and thus no longer support the bed springs. Sitting on the edge of a bed would tend to move all of the slats toward one bed rail, and would also deflect the bed rail outwardly, permitting the slats to drop to the floor. The problem associated with the use of wooden slats as thus described could have been eliminated by replacing the slats with a tension member interconnecting the central portion of conventional side rails, and thereby preventing outward deflection of the rails. The bed springs could then have rested securely on the horizontal flanges or ledges projecting inwardly from the side rails. Claim 3 of plaintiff’s patent would have described an adequate solution to the industry’s bed slat problems were it not for a complicating factor resulting from lack of standardization in the industry. The bed rails are supported by pins which are set in notches in the end boards. Although the width of bed springs assemblies has been standardized for some time, the distance between the pins on headboards and footboards supporting the bed rails varies considerably from the standard spring widths. Thus, although a standard spring assembly for a double bed is 52% inches wide, the slots in the headboard and footboard in which the supporting pins are placed may be as much as 54% inches apart. The discrepancy between the standard spring assembly widths and the variable distances between the notches in the end boards defeated pre-1962 attempts to produce a satisfactory slatless bed assembly. Without the wooden slats, the springs rested on the horizontal flanges or ledges projecting inwardly from the side rails. The metal ledges on conventional side rails were only about 1% inches wide. If the side rails were no further apart than the width of the springs, presumably such ledges would support the spring assembly, provided that a suitable “anti-spread device” prevented outward deflection of the rails when the bed was being moved or when someone was sitting on the middle of it. But the narrow ledges were not adequate to prevent the bedding from falling through to the floor when the notches in the end boards were farther apart than the width of the standard spring assemblies. Plaintiff discovered an ingenious and by no means obvious solution to the problem. He designed new side rails which differed from the conventional in several respects. They contained a broader horizontal ledge which provides firm support for the spring assembly. More significantly, they were designed to provide a snug clamping relationship between the vertical portions of the two side rails and the spring assembly, with the side rails retaining their parallelism with each other and their firm support for the spring assembly, notwithstanding variations in the distance between headboard notches. The patented rail has both a horizontal and a vertical flange over the major portion of its length, but near its ends the horizontal flange flows downwardly into the plane of the vertical flange. In consequence, when the rails are affixed to the headboards and footboards, and interconnected by a centrally located tension member, deflection may occur at the ends of the rails while the major portions of the rails maintain their parallel relationship with each other. As stated in the patent specifications, the major portions of the rails — i. e., the portions with both horizontal and vertical flanges — “will not flex” when interconnected by a tension member, whereas the purely vertical end portions “ * * * may be deflected as much as one inch thus accommodating headboards having variations of two inches more than or less than the standard width of the spring assemblies.” The specifications explain some of the advantages of the parallelism thus achieved. The spring assembly actually becomes an integral part of the bed thereby precluding a substantial canting of the side rails in relation to the headboard and footboard. Furthermore, with the vertical flanges of the side rails disposed against the bedding, there is no space between the bedding and the side rails in which articles may become lost or deposited; this snug relationship also eliminates a spot in which dust normally accumulates. And, of course, the lateral flexibility at the ends of the rails achieved the goal of slatless beds despite varying distances between headboard notches. II. After learning of the commercial success of plaintiff’s slatless bed assemblies, the defendant, Harris-Hub Company, Inc., began to manufacture and sell the accused assembly. The accused device does nothing more than interconnect the centers of two conventional metal side rails with a strap that applies sufficient tension to bow the rails inwardly against the bedding. Although a purely theoretical description of the geometry of the bed rails might suggest that the vertical flanges would make contact with the bed springs only at the apex of each curve, in fact, since the maximum deflection of about an inch on each side rail is such a small fraction of the length of the rail, there is contact between the spring assembly and the bows throughout the major portion of the length of the rails. Plaintiff contends that this difference between parallel rails with end portions that flex as much as one inch, and bowed rails which flex to the same extent, is not sufficient to excuse defendant’s copying of his idea. Ethical considerations provide persuasive support for plaintiff’s position. But under controlling legal principles, they are subordinate to the question whether defendant has violated or merely exercised a right protected by federal patent law. Cf., Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661. As already noted, the questions involve (a) the validity of claim 3 and (b) the alleged equivalence of claim 4 and defendant’s bow. A. The district court 311 F.Supp. 734, found claim 3 invalid, and we have no doubt that he was correct. In construing claim 3, we, of course, look at the language of the claim itself, not at the device manufactured by plaintiff which embodied features described in other claims. It is equally clear that plaintiff’s commercial success with the assembly described in claim 4 has no bearing on the validity of claim 3. Plaintiff argues that the district court erroneously construed claim 3 as nothing more than an anti-spread device. As so construed, the claim is plainly anticipated by a 1933 patent covering an anti-spread device for beds consisting of an adjustable strap interconnecting the central portions of the side rails. Moreover, the language of the claim itself describes the purpose of the interconnecting tension member as “preventing outward deflection of the central portion of the rails.” The specifications explain the importance of preventing outward deflection. Thus, there is ample support for the district court’s interpretation of claim 3 in the language of the patent. Plaintiff argues, however, that claim 3 should be read as also describing an inward deflection of the rails. But there is no reference to an inward deflection in the claim. Plaintiff seeks to equate the claim’s reference to “maintaining” the relationship between the rails and- the bedding with his argument “that the cross-member will pull the side rails into and underneath the box springs.” But his argument relates to the favorable pulling action of the actual device as described in claim 4, rather than to a fair interpretation of the word “maintaining” in claim 3, which, as there used, relates to the avoidance of a spreading action. The claim does not use the verb “pull”; the verb “maintain,” which it does use, does not describe active movement. Neither claim 3 nor anything else in the patent suggests that the inventor believed conventional rails could be used to solve the slatless bed problem resulting from disparities between the standard width of springs and the varying distances between end board notches. The use of conventional rails with a simple anti-spread device would have been acceptable if no such disparity existed. It is thus reasonable to interpret claim 3 as describing an anti-spread device which would be an adequate substitute for wooden slats in beds using headboards with notch separations of the same distance as the width of standard springs. The problems solved by other claims in the patent would not be present with respect to such beds. And nothing in the patent suggests that claim 3 would be an adequate solution to the problems described in the specifications except in such cases. We, therefore, construe claim 3 as an anti-spread device contemplating a slatless assembly for beds with end board notch separations equal to the width of the springs. As such, it was plainly invalid. Apart from the question of anticipation, we would have grave doubt about the validity of plaintiff’s patent if his idea embodied nothing more than a tension member connecting two ordinary metal side rails. Cf., Great A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 152-153, 71 S.Ct. 127, 95 L.Ed. 162; Anderson’s Black Rock v. Pavement Salvage Co., 396 U.S. 57, 61, 90 S.Ct. 305, 24 L.Ed.2d 258. B. Almost the entire text of claim 4 is an explanation of the special design of plaintiff’s side rails. Claim 4 clearly does not describe defendant’s device, which uses conventional rails. Plaintiff argues, however, that infringement is established by the doctrine of equivalence. Relying on Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607-609, 70 S.Ct. 854, 94 L.Ed. 1097, he contends that the accused device performs “substantially the same work in substantially the same way to obtain substantially the same result” as the conception described in claim 4. Plaintiff submitted proposed findings of fact on the issue of equivalence which the district court rejected. As the Supreme Court noted in Graver, a finding of equivalence is a determination of fact with respect to which the trial court’s decision should not be disturbed unless clearly erroneous. 339 U. S. at 609-610, 70 S.Ct. 854. We are not persuaded that the district court’s rejection of plaintiff’s proposed findings on the issue of equivalence was clearly erroneous. The text of the patent indicates that one of the inventor’s assumptions, which required him to design a novel rail with its horizontal flange flaring into the vertical at its ends, was that the “right angular cross-sectional configuration will not flex.” If flexing a conventional rail into a bow had been within his conception, and if that configuration produced a result which is truly an equivalent of his invention, he took unnecessary pains to develop his sophisticated rail design. We think a fair reading of the entire patent indicates that his contribution to the art was predicated on an assumption that the portion of the rail which provides both clamping pressure from the vertical flange and adequate support from the horizontal flange “will not flex.” We are also persuaded that plaintiff cannot deny that the true parallelism of his device produces a result sufficiently superior to the bowing of conventional rails to preclude application of the doctrine of equivalence. The benefits of parallelism are described in the specifications and, in large part, constitute the objective achieved by the special design of the rails. As we consider the rail design a crucial fe.ature of plaintiff’s patented invention, we are unwilling to extend the scope of plaintiff’s monopoly to include all slatless bed assemblies using a tension member to interconnect conventional side rails. Plaintiff has no patent on the function performed by his invention. The substance of plaintiff’s invention includes an original design for side rails. We read the language which plaintiff used in his patent as foreclosing his claim that tension sufficiently strong to bow conventional rails is the equivalent of his unique side rail design. He may not thus demean his own ingenious concept. The judgment is affirmed. . ‘‘3. A bed assembly comprising a pair of side rails, a pair of end boards interconnecting and extending perpendicularly to said rails, a spring assembly supported on and between said rails and between said end boards, each of said rails being of one-piece metallic construction and having a right angular cross-sectional configuration substantially over a major portion of its length and including a horizontal flange extending .under the spring assembly, a tension member interconnecting the central portions of the rails thereby preventing outward deflection of the central portions of the rails and maintaining the horizontal flange thereof in underlying relation to the spring assembly thereby providing support therefor.” . “4. The structure as defined in claim 3 wherein each end portion of each rail is formed in the configuration of a vertical plate capable of being resiliently laterally deflected, hook members on the ends of each rail for engagement with the end boards, said plates enabling the end portions of the rails to be deflected laterally to engage with pins on the end boards spaced at varying distances apart for connecting the rails to the end boards while maintaining the central portions thereof in constant spatial relation, the spatial relation between the vertical flanges of the side rails being such that the spring assembly will be clamped therebetween whereby the spring assembly is locked to the rails to rigidify the entire assembly by retaining the vertical flanges snugly to the spring assembly throughout the major portion of the length of the rails.” . See plaintiff’s Patent No. 3,118,151, issued January 21, 1964, column 1, lines 33-45. . “Inasmuch as tho portion of the bed rails 20 which are of right angular cross-section configuration will not flex, the single centrally located strap 50 will retain the major portion of the bed rails in parallel relation and in substantially gripping relation to the spring assembly 12.” Patent, column 3, lines 08-73. . Id., column 4, lines 5-8. . Id., column 4, lines 9-12. . Id., column 4, lines 48-53. . Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005; Sanitary Dist. of Chicago v. Activated Sludge, Inc., 90 F.2d 727, 730 (7th Cir. 1937) cert. denied 302 U.S. 736, 58 S.Ct. 121, 82 L.Ed. 569; see Moon v. Cabot Shops, Inc., 270 F.2d 539 (9th Cir. 1959). . We find no evidence in the record of any attempt by plaintiff to manufacture a slatless bed assembly that did not embody the features of claim 4 or, more narrowly, that did not use the rails described in claim 1. . Fanders No. 1,926,432. The Fanders patent was not cited in the patent office. The law in this circuit is clear that there'is no presumption of patent validity when the pertinent prior art was not before the patent examiner. See Rockwell v. Midland-Ross Corp., 438 F. 2d 645, 650 (7th Cir. 1971); Appleton Electric Co. v. Efengee Electrical Supply Co., 412 F.2d 579, 581 n. 4 (7th Cir. 1969), and cases cited therein; see also Graham v. John Deere Co., 383 U.S. 1, 25-26, 86 S.Ct. 684, 15 L.Ed. 2d 545. . See Patent, column 5, lines 12-13. . See, e. g., id., column 1, lines 33-41, 62-67, column 2, lines 3-6. . This argument is supported by a portion of the testimony of the defendant's expert witness. However, it is the language of plaintiff’s claim, not of defendant’s expert witness, that is controlling. See Winans v. New York & Erie R.R. Co., 62 U.S. (21 How.) 88, 100-101, 16 L.Ed. 68; Minnesota Mining & Mfg. Co. v. Carborundum Co., 155 F.2d 746, 749 (3rd Cir. 1946); cf., Methode Electronics, Inc. v. Elco Corp., 385 F.2d 138, 140 (3rd Cir. 1967). . See footnote 2, supra. . The quoted language is from plaintiff’s brief in which he paraphrases the language “performs substantially the same function in substantially the same way to obtain the same result,” which the Supreme Court in Graver quoted from Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147. . Patent, column 3, lines 69-70. Tlie quotation is from a description of plaintiff’s rail, rather than a conventional rail, but we are nevertheless satisfied that the invention was predicated on the assumption that without plaintiff’s design features, the rail would have been inflexible, or sufficiently so that the desired result could not be achieved without the special rail design. . “But, after all, even if the patent for a machine be a pioneer, the alleged in-fringer must have done something more than reach the same result. He must have reached it by substantially the same or similar means, or the rule that the function of a machine cannot be patented is of no practical value. To say that the patentee of a pioneer invention for a new mechanism is entitled to every meekanical device which produces the same result is to Bold, in other language, that he is entitled to patent his function. Mere variations of form may be disregarded, but the substance of the invention must be there.” Westinghouse v. Boyden Power Brake Company, 170 U.S. 537, 569, 18 S.Ct. 707, 723, 42 L.Ed. 1136. 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_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. KENNEDY, executrix of the ESTATE OF KENNEDY, DECEASED v. PLAN ADMINISTRATOR FOR DuPONT SAVINGS AND INVESTMENT PLAN et al. No. 07-636. Argued October 7, 2008 Decided January 26, 2009 Souter, J., delivered the opinion for a unanimous Court. David A. Furlow argued the cause for petitioner. With him on the briefs were Kevin Pennell and Stacy L. Kelly. Mark I. Levy argued the cause for respondents. With him on the brief were Adam H. Chames, John M. Vine, Seth J. Safra, Theodore P. Metzler, Raymond Michael Ripple, and Donna L. Goodman. Leondra R. Kruger argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Clement, Assistant Attorney General Hochman, Deputy Solicitor General Kneedler, Robert F. Hoyt, Donald L. Korb, Nathaniel 1. Spiller, and Edward D. Sieger. Briefs of amici curiae urging affirmance were filed for AARP by Mary Ellen Signorille and Melvin R. Radowitz; for the American Benefits Council et al. by Kent A. Mason; and for the Western Conference of Teamsters Pension Trust Fund by R. Bradford Huss. Justice Souter delivered the opinion of the Court. The Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq., generally obligates administrators to manage ERISA plans “in accordance with the documents and instruments governing” them. § 1104(a)(1)(D). At a more specific level, the Act requires covered pension benefit plans to “provide that benefits .. . under the plan may not be assigned or alienated,” § 1056(d)(1), but this bar does not apply to qualified domestic relations orders (QDROs), § 1056(d)(3). The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband’s ERISA pension plan, who purported to waive her entitlement by a federal common law waiver embodied in a divorce decree that was not a QDRO. We hold that such a waiver is not rendered invalid by the text of the antialienation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the designation made by the former husband in accordance with plan documents. I The decedent, William Kennedy, worked for E. I. DuPont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to “designate any beneficiary or beneficiaries ... to receive all or part” of the funds upon his death, and to “replace or revoke such designation.” App. 48. The plan requires “[a]ll authorizations, designations and requests concerning the Plan [to] be made by employees in the manner prescribed by the [plan administrator],” id., at 52, and provides forms for designating or changing a beneficiary, id., at 34, 56-57. If at the time the participant dies “no surviving spouse exists and no beneficiary designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent’s estate.” Id., at 48. The SIP is an ERISA “‘employee pension benefit plan,”’ 497 F. 3d 426, 427 (CA5 2007); 29 U. S. C. § 1002(2), and the parties do not dispute that the plan satisfies ERISA’s anti-alienation provision, § 1056(d)(1), which requires it to “provide that benefits provided under the plan may not be assigned or alienated.” The plan does, however, permit a beneficiary to submit a “qualified disclaimer” of benefits as defined under the Tax Code, see 26 U. S. C. § 2518, which has the effect of switching the beneficiary to an “alternate . . . determined according to a valid beneficiary designation made by the deceased.” Supp. Record 86-87 (Exh. 15). In 1971, William married Liv Kennedy, and, in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. 497 F. 3d, at 427. William and Liv divorced in 1994, subject to a decree that Liv “is ... divested of all right, title, interest, and claim in and to . . . [a]ny and all sums ... the proceeds [from], and any other rights related to any . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” App. to Pet. for Cert. 64-65. William did not, however, execute any documents removing Liv as the SIP beneficiary, 497 F. 3d, at 428, even though he did execute a new beneficiary-designation form naming his daughter, Kari Kennedy, as the beneficiary under DuPont’s Pension and Retirement Plan, also governed by ERISA. On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s estate (hereinafter Estate). Ibid. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. Ibid. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the benefits to William’s designee. So far as it matters here, the District Court entered summary judgment for the Estate, to which it ordered DuPont to pay the value of the SIP benefits. The court relied on Fifth Circuit precedent establishing that a beneficiary can waive his rights to the proceeds of an ERISA plan “‘provided that the waiver is explicit, voluntary, and made in good faith.’” App. to Pet. for Cert. 38 (quoting Manning v. Hayes, 212 F. 3d 866, 874 (CA5 2000)). The Fifth Circuit nonetheless reversed, distinguishing prior decisions enforcing federal common law waivers of ERISA benefits because they involved life-insurance policies, which are considered “ ‘welfare plants]’ ” under ERISA and consequently free of the antialienation provision. 497 F. 3d, at 429. The Court of Appeals held that Liv’s waiver constituted an assignment or alienation of her interest in the SIP benefits to the Estate, and so could not be honored. Id., at 430. The court relied heavily on the ERISA provision for bypassing the antialienation provision when a marriage breaks up: under 29 U. S. C. § 1056(d)(3), a court order that satisfies certain statutory requirements is known as a QDRO, which is exempt from the bar on assignment or alienation. Because the Kennedys’ divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv’s waiver incorporated in it, given that “ERISA provides a specific mechanism — the QDRO — for addressing the elimination of a spouse’s interest in plan benefits, but that mechanism is not invoked.” 497 F. 3d, at 431. We granted certiorari to resolve a split among the Courts of Appeals and State Supreme Courts over a divorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO. 552 U. S. 1178 (2008). We subsequently realized that this case implicates the further split over whether a beneficiary’s federal common law waiver of plan benefits is effective where that waiver is inconsistent with plan documents, and after oral argument we invited supplemental briefing on that latter issue, upon which the disposition of this case ultimately turns. We now affirm, albeit on reasoning different from the Fifth Circuit’s rationale. II A By its terms, the antialienation provision, § 1056(d)(1), requires a plan to provide expressly that benefits be neither “assigned” nor “alienated,” the operative verbs having histories of legal meaning: to “assign” is “[t]o transfer; as to assign property, or some interest therein,” Black’s Law Dictionary 152 (4th rev. ed. 1968), and to “alienate” is “[t]o convey; to transfer the title to property,” id., at 96. We think it fair to say that Liv did not assign or alienate anything to William or to the Estate later standing in his shoes. The Fifth Circuit saw the waiver as an assignment or alienation to the Estate, thinking that Liv’s waiver transferred the SIP benefits to whoever would be next in line; without a designated contingent beneficiary, the Estate would take them. The court found support in the applicable Treasury Department regulation that defines “assignment” and “alienation” to include “[a]ny direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” 26 CFR § 1.401(a) — 13(c)(l)(ii) (2008). See Boggs v. Boggs, 520 U. S. 833, 851-852 (1997) (relying upon the regulation to interpret the meaning of “assignment” and “alienation” in § 1056(d)(1)). The Circuit treated Liv’s waiver as an “ ‘indirect arrangement’ ” whereby the Estate gained an “‘interest enforceable against the plan.’” 497 F. 3d, at 430. Casting the alienation net this far, though, raises questions that leave one in doubt. Although it is possible to speak of the waiver as an “arrangement” having the indirect effect of a transfer to the next possible beneficiary, it would be odd usage to speak of an estate as the transferee of its own decedent’s property, just as it would be to speak of the decedent in his lifetime as his own transferee. And treating the estate or even the ultimate estate beneficiary as the assignee or transferee would be strange under the terms of the regulation: it would be hard to say the estate or future beneficiary “acquires” a right or interest when at the time of the waiver there was no estate and the beneficiary of a future estate might be anyone’s guess. If there were a contingent beneficiary (or the participant made a subsequent designation) the estate would get no interest; as for an estate beneficiary, the identity could ultimately turn on the law of intestacy applied to facts as yet unknown, or on the contents of the participant’s subsequent will, or simply on the participant’s future exercise of (or failure to invoke) the power to designate a new beneficiary directly under the terms of the plan. Thus, if such a waiver created an “arrangement” assigning or transferring anything under the statute, the assignor would be blindfolded, operating, at best, on the fringe of what “assignment” or “alienation” normally suggests. The questionability of this broad reading is confirmed by exceptions to it that are apparent right off the bat. Take the case of a surviving spouse’s interest in pension benefits, for example. Depending on the circumstances, a surviving spouse has a right to a survivor’s annuity or to a lump-sum payment on the death of the participant, unless the spouse has waived the right and the participant has eliminated the survivor annuity benefit or designated a different beneficiary. See Boggs, supra, at 843; 29 U. S. C. §§ 1055(a), (b)(1)(C), (c)(2). This waiver by a spouse is plainly not barred by the antialienation provision. Likewise, DuPont concedes that a qualified disclaimer under the Tax Code, which allows a party to refuse an interest in property and thereby eliminate federal tax, would not violate the anti-alienation provision. See Brief for Respondents 21-23; 26 U. S. C. § 2518. In each example, though, we fail to see how these waivers would be permissible under the Fifth Circuit’s reading of the statute and regulation. Our doubts, and the exceptions that call the Fifth Circuit’s reading into question, point us toward authority we have drawn on before, the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U. S. 96, 101 (2007). We explained before that § 1056(d)(1) is much like a spendthrift trust provision barring assignment or alienation of a benefit, see Boggs, supra, at 852, and the cognate trust law is highly suggestive here. Although the beneficiary of a spendthrift trust traditionally lacked the means to transfer his beneficial interest to anyone else, he did have the power to disclaim prior to accepting it, so long as the disclaimer made no attempt to direct the interest to a beneficiary in his stead. See 2 Restatement (Third) of Trusts §58(1), Comment c, p. 359 (2001) (“A designated beneficiary of a spendthrift trust is not required to accept or retain an interest prescribed by the terms of the trust.... On the other hand, a purported disclaimer by which the beneficiary attempts to direct who is to receive the interest is a precluded transfer”); E. Griswold, Spendthrift Trusts §524, p. 603 (2d ed. 1947) (“The American cases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed”); Roseberry v. Moncure, 245 Va. 436, 439, 429 S. E. 2d 4, 6 (1993) (“ Tf a trust is created without notice to the beneficiary or the beneficiary has not accepted the beneficial interest under the trust, he can disclaim’” (quoting 1 A. Scott & W. Fratcher, Law of Trusts § 36.1, p. 389 (4th ed. 1987) (hereinafter Fratcher))). We do not mean that the whole law of spendthrift trusts and disclaimers turns up in § 1056(d)(1), but the general principle that a designated spendthrift can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a beneficiary to take an interest willy-nilly. Common sense and common law both say that “[t]he law certainly is not so absurd as to force a man to take an estate against his will.” Townson v. Tickell, 3 Barn. & Ald. 31, 36, 106 Eng. Rep. 575, 576-577 (K. B. 1819). The Treasury is certainly comfortable with the state of the old law, for the way it reads its own regulation “no party ‘acquires from’ a beneficiary a ‘right or interest enforceable against a plan’ pursuant to a beneficiary’s waiver of rights where the beneficiary does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. And, being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation of its regulation is controlling. Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted). The Fifth Circuit found “significant support” for its contrary holding in the QDRO subsections, reasoning that “[i]n the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision,” 497 F. 3d, at 430, a point that echoes in DuPont’s argument here. But the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the antialienation provision was meant to deny any effect to a waiver within a divorce decree but not a QDRO, else there would have been no need for the QDRO exception. But this is not so, and DuPont’s argument rests on a false premise. In fact, a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition requires that it be the “creat[ion] or recognition of] the existence of an alternate payee’s right to, or assignment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 29 U. S. C. § 1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee. Not being a mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a beneficiary may waive by a non-QDRO. In sum, Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential beneficiary, and accordingly we think that the better view is that her waiver did not constitute an assignment or alienation rendered void under the terms of § 1056(d)(1). B DuPont has three other reasons for saying that Liv’s waiver was barred by ERISA. They are unavailing. First, it argues that even if the waiver is not an assignment or alienation barred under the terms of § 1056(d)(1), § 1056(d)(3)(A) still prohibits it, in providing that § 1056(d)(1) “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order [that is not a QDRO].” At the very least, DuPont reasons, Liv’s waiver included a “recognition” of William’s rights with respect to the SIP benefits. But DuPont overlooks the point that when subsection (d)(3)(A) provides that the bar to assignments or alienations extends to non-QDROs, it does nothing to expand the scope of prohibited assignment and alienation under subsection (d)(1). Whether Liv’s action is seen as a waiver or as a domestic relations order that incorporated a waiver, subsection (d)(1) does not cover it and § 1056(d)(3)(A) does not independently bar it. Second, DuPont relies upon •§ 1056(d)(3)(H)(iii)(II), providing that if a domestic relations order is not a QDRO, “the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.” According to DuPont, because the divorce decree was not a QDRO this provision calls for paying benefits as if there had been no order. But DuPont has wrenched this language out of its setting, reading clause (iii) of subparagraph (H) as if there were no clause (i): “During any period in which the issue of whether a domestic relations order is a qualified [QDRO] domestic relations order is being determined... the plan administrator shall separately account for the amounts (hereinafter in this subparagraph referred to as the ‘segregated amounts’) which would have been payable to the alternate payee during such period if the order had been determined to be a [QDRO].” § 1056(d)(3)(H)®. Thus it is clear that subparagraph (H) speaks of a domestic relations order that distributes certain benefits (the “segregated amounts”) to an alternate payee, when the question for the plan administrator is whether the order is effective as a QDRO. That is the circumstance in which, for want of a QDRO, clause (iii) tells the plan administrator not to pay the alternate, but to distribute the segregated amounts as if there had been no order. Clause (iii) does not, as DuPont suggests, state a general rule that a non-QDRO is a nullity in any proceeding that would affect the determination of a beneficiary. And of course clause (iii) says nothing here at all; the divorce decree names no alternate payee, and there are consequently no “segregated amounts.” Third, DuPont claims that a plan cannot recognize a waiver of benefits in a non-QDRO divorce decree because ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,” with “State law” being defined to include “decisions” or “other State action having the effect of law.” §§ 1144(a), (c)(1). DuPont says that Liv’s waiver, expressed in a state-court decision and related to an employee benefit plan, is thus preempted. But recognizing a waiver in a divorce decree would not be giving effect to state law; the argument is that the waiver should be treated as a creature of federal common law, in which case its setting in a state divorce decree would be only happenstance. A court would merely be applying federal law to a document that might also have independent significance under state law. See, e. g., Melton v. Melton, 324 F. 3d 941, 945-946 (CA7 2003); Clift v. Clift, 210 F. 3d 268, 271-272 (CA5 2000); Lyman Lumber Co. v. Hill, 877 F. 2d 692, 693-694 (CA8 1989). Ill The waiver’s escape from inevitable nullity under the express terms of the antialienation clause does not, however, control the decision of this case, and the question remains whether the plan administrator was required to honor Liv’s waiver with the consequence of distributing the SIP balance to the Estate. We hold that it was not, and that the plan administrator did its statutory ERISA duty by paying the benefits to Liv in conformity with the plan documents. ERISA requires “[e]very employee benefit plan [to] be established and maintained pursuant to a written instrument,” 29 U. S. C. § 1102(a)(1), “specifying] the basis on which payments are made to and from the plan,” § 1102(b)(4). The plan administrator is obliged to act “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [Title I] and [Title IV] of [ERISA],” § 1104(a)(1)(D), and ERISA provides no exemption from this duty when it comes time to pay benefits. On the contrary, § 1132(a)(1)(B) (which the Estate happens to invoke against DuPont here) reinforces the directive, with its provision that a participant or beneficiary may bring a cause of action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plah.” The Estate’s claim therefore stands or falls by “the terms of the plan,” § 1132(a)(1)(B), a straightforward rule of hewing to the directives of the plan documents that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits,’ ” Egelhoff v. Egelhoff, 532 U. S. 141, 148 (2001) (quoting Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987)); see also Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 83 (1995) (ERISA’s statutory scheme “is built around reliance on the face of written plan documents”). The point is that by giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtues of adhering to an uncomplicated rule: “simple administration, avoiding] double liability, and ensuring] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.” Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F. 2d 275, 283 (CA7 1990) (Easterbrook, J., dissenting). And the cost of less certain rules would be too plain. Plan administrators would be forced “to examine a multitude of external documents that might purport to affect the dispensation of benefits,” Altobelli v. IBM Corp., 77 F. 3d 78, 82-83 (CA4 1996) (Wilkinson, C. J., dissenting), and be drawn into litigation like this over the meaning and enforceability of purported waivers. The Estate’s suggestion that a plan administrator could resolve these sorts of disputes through interpleader actions merely restates the problem with the Estate’s position: it would destroy a plan administrator’s ability to look at the plan documents and records conforming to them to get clear distribution instructions, without going into court. The Estate of course is right that this guarantee of simplicity is not absolute. The very enforceability of QDROs means that sometimes a plan administrator must look for the beneficiaries outside plan documents notwithstanding § 1104(a)(1)(D); § 1056(d)(3)(J) provides that a “person who is an alternate payee under a [QDRO] shall be considered for purposes of any provision of [ERISA] a beneficiary under the plan.” But this in effect means that a plan administrator who enforces a QDRO must be said to enforce plan documents, not ignore them. In any case, a QDRO enquiry is relatively discrete, given the specific and objective criteria for a domestic relations order that qualifies as a QDRO, see §§ 1056(d)(3)(C), (D), requirements that amount to a statutory checklist working to “spare [an administrator] from litigation-fomenting ambiguities,” Metropolitan Life Ins. Co. v. Wheaton, 42 F. 3d 1080, 1084 (CA7 1994). This is a far cry from asking a plan administrator to figure out whether a claimed federal common law waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and so forth, on into factually complex and subjective determinations. See, e.g., Altobelli, supra, at 83 (Wilkinson, C. J., dissenting) (“[W]aiver provisions are often sweeping in their terms, leaving their precise effect on plan benefits unclear”); Mohamed v. Kerr, 53 F. 3d 911, 915 (CA8 1995) (making “fact-driven determination” that marriage termination agreement constituted a valid waiver under federal common law). These are good and sufficient reasons for holding the line, just as we have done in cases of state laws that might blur the bright-line requirement to follow plan documents in distributing benefits. Two recent preemption cases are instructive here. Boggs v. Boggs, 520 U. S. 833, held that ERISA preempted a state law permitting the testamentary transfer of a nonparticipant spouse’s community property interest in undistributed pension plan benefits. We rejected the entreaty to create “through case law ... a new class of persons for whom plan assets are to be held and administered,” explaining that “[t]he statute is not amenable to this sweeping extratextual extension.” Id., at 850. And in Egelhoff we held that ERISA preempted a state law providing that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. 532 U. S., at 143. We said the law was at fault for standing in the way of making payments “simply by identifying the beneficiary specified by the plan documents,” id., at 148, and thus for purporting to “undermine the congressional goal of ‘minimizing] the administrative and financial burden[s]’ on plan administrators,” id., at 149-150 (quoting Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990)); see Egelhoff, supra, at 147, n. 1 (identifying “the conflict between the plan documents (which require making payments to the named beneficiary) and the statute (which requires making payments to someone else)”). What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan administrator’s duty to act “in accordance with the documents and instruments.” See Mertens v. Hewitt Associates, 508 U. S. 248, 259 (1993) (“The authority of courts to develop a ‘federal common law’ under ERISA ... is not the authority to revise the text of the statute”). And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule. Under the terms of the SIP Liv was William’s designated beneficiary. The plan provided an easy way for William to change the designation, but for whatever reason he did not. The plan provided a way to disclaim an interest in the SIP account, but Liv did not purport to follow it. The plan administrator therefore did exactly what § 1104(a)(1)(D) required: “the documents control, and those name [the ex-wife].” McMillan v. Parrott, 913 F. 2d 310, 312 (CA6 1990). It is no answer, as the Estate argues, that William’s beneficiary-designation form should not control because it is not one of the “documents and instruments governing the plan” under § 1104(a)(1)(D) and was not treated as a plan document by the plan administrator. That is beside the point. It is uncontested that the SIP and the summary plan description are “documents and instruments governing the plan.” See Curtiss-Wright Corp., 514 U. S., at 84 (explaining that 29 U. S. C. §§ 1024(b)(2) and (b)(4) require a plan administrator to make available the “governing plan documents”). Those documents provide that the plan administrator will pay benefits to a participant’s designated beneficiary, with designations and changes to be made in a particular way. William’s designation of Liv as his beneficiary was made in the way required; Liv’s waiver was not. IV Although Liv’s waiver was not rendered a nullity by the terms of § 1056, the plan administrator properly distributed the SIP benefits to Liv in accordance with the plan documents. The judgment of the Court of Appeals is affirmed on the latter ground. It is so ordered. The plan states that “[e]xcept as provided by Section 401(a)(13) of the [Internal Revenue] Code, no assignment of the rights or interests of account holders under this Plan will be permitted or recognized, nor shall such rights or interests be subject to attachment or other legal processes for debts.” App. 50-51. Title 26 U. S. C. §401(a)(13)(A), in language substantially tracking the text of § 1056(d)(1), provides that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.” The Estate now says that William’s beneficiary-designation form for the Pension and Retirement Plan applied to the SIP as well, but the form on its face applies only to DuPont’s “Pension and Retirement Plan.” App. 62. In the District Court, in fact, the Estate stipulated that William “never executed any forms or documents to remove or replace Liv Kennedy as his sole beneficiary under either the SIP or [a plan that merged into the SIP].” Id., at 28. In any event, the Estate did not raise this argument in the Court of Appeals, and we will not address it in the first instance. See Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646 (1992). Section 1056(d)(3)(A) provides that the antialienation provision “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order.” Compare Altobelli v. IBM Corp., 77 F. 3d 78 (CA4 1996) (federal common law waiver in divorce decree does not conflict with antialienation provision); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F. 2d 275 (CA7 1990) (en banc) (same); Keen v. Weaver, 121 S. W. 3d 721 (Tex. 2003) (same), with McGowan v. NJR Serv. Corp., 423 F. 3d 241 (CA3 2005) (federal common law waiver in divorce decree barred by antialienation provision). Compare Altobelli, supra (federal common law waiver controls); Mohamed v. Kerr, 53 F. 3d 911 (CA8 1995) (same); Brandon v. Travelers Ins. Co., 18 F. 3d 1321 (CA5 Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_judgdisc	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Plaintiff-Appellee, v. John Lee BOWEN, Defendant-Appellant. No. 72-1012. United States Court of Appeals, Ninth Circuit. May 9, 1974. Wallace, Circuit Judge, dissented from that part of the decision dealing with the applicability of Almeida-San-chez to fixed-checkpoint searches and filed opinion in which Chambers, Koelsch, Eugene A. Wright, Choy and Sneed, Circuit Judges, concurred. Alfred T. Goodwin, Circuit Judge, concurred in and dissented from that portion of the decision relating to retroactive application of Almeida-Sanchez and filed opinion in which Merrill, Browning and Duniway, Circuit Judges, joined. Hufstedler, Circuit Judge, dissented from that part of the decision relating to retroactive application of Almeida-Sanchez and filed opinion in which Ely, Circuit Judge, joined. Michael D. Nasatir (argued), Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant. James W. Meyers, Shelby R. Gott, Asst. U. S. Attys. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee. Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges. PER CURIAM: This appeal is before the court upon the remand of the Supreme Court, Bowen v. United States, 413 U.S. 915, 93 S.Ct. 3069, 37 L.Ed.2d 1038 (1973), vacating, 462 F.2d 347 (9th Cir. 1972). Bowen was convicted of smuggling and transporting marijuana and of possessing depressant and stimulant drugs. The evidence of the violations was discovered during a routine search for illegal aliens of a camper truck at a permanent border-patrol checkpoint on California State Highway 86 approximately 36 air miles and 49 highway miles north of the Mexican border. Highway 86 is a principal route from Mexicali to Los An-geles by way of Indio and Riverside. On June 21, 1973, the Supreme Court held in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), rev’g, 452 F.2d 459 (9th Cir. 1971), that border-patrol agents on roving patrol cannot stop and search cars pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1 without probable cause or warrant. Two separate issues are presented here: (1) How does Almeida-Sanchez affect searches conducted at a fixed checkpoint? (2) If fixed-checkpoint searches, as well as roving-patrol searches, are included within the ambit of the Almeida-Sanchez ruling, should that ruling be applied to fixed-checkpoint searches conducted by border-patrol agents prior to June 21, 1973, in cases pending on appeal on that date ? For the reasons set forth in Part I of the opinion of the majority of the court here, we hold that the rule announced by the Supreme Court in Almeida-Sanchez does apply to searches at fixed checkpoints. However, for the reasons set forth in Part II, we also hold that Almeida-Sanchez will not be applied to fixed-checkpoint searches conducted prior to June 21, 1973. The judgment of conviction is affirmed. PART I ALFRED T. GOODWIN, Circuit Judge: According to the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the government has been conducting three types of alien searches pursuant to 8 U.S.C. § 1357(a) and 8 C.F.R. § 287.1: (1) searches at “[permanent checkpoints * * * maintained at certain nodal intersections”; (2) searches at “temporary checkpoints * * * established from time to time at various places”; and (3) searches carried out by “roving patrols.” 413 U.S. at 268. The government argued in Almeida-Sanchez that all these searches conducted “within a reasonable distance from any external boundary,” 8 U.S.C. § 1357(a)(3), could be considered border searches, and thus be carried out with neither a warrant nor probable cause. See Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The search condemned in Almeida-Sanchez was of the “roving patrol” type. It was conducted 25 miles north of the Mexican border, on a California east-west highway that lies at all points at least 20 miles north of the border. 413 U.S. at 267-268, 273. The search of Bowen’s camper, however, was a fixed-checkpoint search, a type of search reserved from the Almeida-Sanchez decision. The checkpoint, on California State Highway 86, was between the major population centers of the Imperial Valley and Indio. The opinion **S.in Almeida-Sanchez, delivered by Mr. Justice Stewart, leaves little doubt that traditional Fourth Amendment standards apply to fixed-checkpoint searches as well as to roving-patrol searches. Early in the opinion, after listing the three types of surveillance conducted by the Border Patrol along inland roadways and noting that the government argues that “[i]n all of these operations * * the agents are acting within the Constitution when they stop and search automobiles without a warrant, without probable cause to believe the cars contain aliens, and even without probable cause to believe the cars have made a border crossing,” the Court stated that “ [t] he only asserted justification for this extravagant license to search is § 287 of the Immigration and Nationality Act, 66 Stat. 233, 8 U.S.C. § 1357(a) * * 413 U.S. at 268. Moreover, the government in Almei-da-Sanchez sought to justify roving-patrol searches on the basis of 8 U.S.C. § 1357(a)(3) and 8 C.F.R. § 287.1(a)(2). Here, the government seeks to justify the fixed-checkpoint search by reference to the same statute and regulation. But, when the Supreme Court held that this statute and regulation could not exempt searches carried out pursuant to them from traditional Fourth Amendment scrutiny, see 413 U.S. at 272, the government’s statutory justification for fixed-checkpoint searches as well as for roving-patrol searches vanished. Finally, at the very end of its opinion, 413 U.S. at 274-275, the Court quoted from Carroll v. United States as follows: “* * It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding.liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise * * 267 U.S. at 153-154. It would be strange indeed for the Court to quote this language if it meant to leave intact the government’s asserted right to establish fixed checkpoints anywhere within 100 miles of the border. Surely, searches at these checkpoints, like searches by roving patrols have the effect of violating the “right to free passage without interruption or search” of “those lawfully within the country * * Such searches, therefore, must meet constitutional standards regardless of their utility in carrying forward the difficult mission of the Border Patrol. To be sure, Mr. Justice Powell in his concurrence and Mr. Justice White in his dissent both correctly pointed out that Almeida-Sanchez did not present a question of a fixed-checkpoint search. See 413 U.S. at 275-276, 288. Nonetheless, these disclaimers do not override clear indications in the opinion of the Court that any distinction between fixed and movable checkpoints will be meaningless unless the distinction can be based upon reasoned Fourth Amendment considerations. The government argues that there are, in fact, significant constitutional differences between roving patrols and fixed checkpoints. First, since fixed checkpoints often involve a stop and inspection of every car passing through them, they provide much less opportunity for the unfettered discretion of the police officer that was condemned in Almeida-Sanchez. See 413 U.S. at 268. Second, being stopped on a lonely road at night in a sparsely populated part of the country (Almeida-Sanchez) is more burdensome to the traveler than a stop at an identified and lighted checkpoint (Bowen). The government contends once again that the Constitution does not forbid all searches, but only “unreasonable” ones. In support of the validity of arguably “reasonable” fixed-checkpoint searches, the government cites a number of judicial decisions upholding roadblocks established for the purpose of checking drivers’ licenses and registrations. See, e. g., United States v. Croft, 429 F.2d 884, 886 (10th Cir. 1970); People v. Washburn, 265 Cal.App.2d 665, 71 Cal.Rptr. 577, 581 (2d Dist. 1968); State v. Smolen, 4 Conn.Cir. 385, 232 A.2d 339 (App.Div.), pet. for certification for appeal denied, 231 A.2d 283 (Conn.1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 787, 19 L.Ed.2d 835 (1968); State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968). We agree with the government that a fixed-checkpoint search that does not entail significant delay is probably less offensive than a roving-patrol search. Being asked to stop at a fixed checkpoint is not frightening to a seasoned traveler. Being flagged over to the side of the road by a roving patrol might be traumatic. Also, an officer on roving patrol probably has more discretion in deciding which cars to stop than one stationed at a fixed checkpoint, although the difference might be less than the government contends. Since not all vehicles passing through a checkpoint are stopped, and since not all vehicles stopped are searched, the officer at the checkpoint still retains a good deal of discretion to “single out” some travelers for stops or intrusive searches. Nonetheless, even conceding that a fixed-checkpoint search might be less of an imposition on domestic travelers than a roving-patrol search, we are able to find nothing in the opinion of the Court in Almeida-Sanchez which suspends Fourth Amendment standards in dealing with immigration searches at fixed checkpoints. Moreover, the government’s reliance on judicial decisions upholding automobile stops for the purpose of checking drivers’ licenses is misplaced. Although the government has cited only roadblock stops, there is a parallel line of decisions upholding roving-patrol stops to check for valid license and registration. See, e. g., Lipton v. United States, 348 F.2d 591 (9th Cir. 1965); State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 (Div. 1, Dept. B, 1973); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App.1973). In other cases, courts did not even find the fact that the stop may have been at a roadblock rather than incident to a roving patrol significant enough to mention. See, e. g., United States v. Lepinski, 460 F.2d 234, 237 (10th Cir. 1972); Myricks v. United States, 370 F.2d 901 (5th Cir.), pet. for cert. dismissed, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474 (1967). Hence, since this line of vehicle-registration-check decisions was as relevant in Almeida-Sanchez as here, we do not find these decisions to be an appropriate means for distinguishing Bowen’s search from that of Almeida-Sanchez. What is more, the rationale for the drivers’-license decisions will not support the government’s position here. For example, in Lipton v. United States, supra, in which this court upheld a stop by a motorcycle police officer of a youth driving an automobile, we reasoned that there was no way for a police officer to determine that a driver had a valid license permitting him to operate a motor vehicle other than by stopping him and asking him to produce his license. We noted: “* * * A contrary holding would render unenforceable the State statute requiring that automobile drivers be licensed.” 348 F.2d at 593. We are not persuaded that laws prohibiting illegal immigration will be rendered similarly unenforceable should we deny to the government the power to stop and search automobiles, without probable cause or warrant, at fixed checkpoints. We hold, then, that fixed-checkpoint searches, like roving-patrol searches, even though conducted within a “reasonable distance” from the border, are not necessarily exempt from the traditional Fourth Amendment requirement of a warrant or probable cause. This holding, however, merely shifts the focus of our inquiry. The opinion in Al-meida-Sanchez does not require that a border search, to be constitutional, be at the border itself; rather, a legitimate border search may also be conducted “in certain circumstances” at the border’s “functional equivalents.” 413 U.S. at 272. The search conducted in the present ease was obviously not at the border itself; nor was it at a “functional equivalent” of the border. The “function” of a border checkpoint is to regulate border crossings. Thus, in attempting to clarify what would constitute a “functional equivalent” of the border, the Court in Almeida-Sanchez offered two examples: "* * * For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passen- ■ gers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.” 413 U.S. at 272-273. (Emphasis added.) These examples are then contrasted with the search conducted in Almeida-San-chez: “* * * [T]he search of * * * [an] automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort * * 413 U.S. at 273. In other words, if a search takes place at a location where virtually everyone searched has just come from the other side of the border, the search is a functional equivalent of a border search. In contrast, if a search takes place at a location where a significant number of those stopped are domestic travelers going from one point to another within the United States, the search is not the functional equivalent of a border search. One need only contemplate the volume of domestic travel between Buffalo and Rochester, New York, to see why a checkpoint between those two cities could not be the functional equivalent of a border checkpoint even though the checkpoint could be less than twenty miles from an international border. In addition to the two examples of a functional equivalent of a border search provided by the Court in Almeida-Sanchez, other examples may be drawn from two series of decisions of this court. Representative of the first line of authority is Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966). In that case customs officials, acting upon a tip from an informer, placed the defendant’s automobile under surveillance when it crossed the border, and kept it under almost continuous watch as it made suspicious movements through the streets of a border city. In holding that a subsequent search by customs officials was properly called a border search, the court stated: “Where * * * a search for contraband by Customs officers is not made at or in the immediate vicinity of the point of international border crossing, the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of the search was aboard the vehicle at the time of entry into the jurisdiction of the United States * * .” 362 F.2d at 382. In a second line of our own cases, this court has treated a search north of the border as the equivalent of a border search, where it appeared with reasonable certainty that the vehicle searched contained either goods which have just been smuggled or a person who had just crossed the border illegally. See, e. g., United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), in which this court held: “ * * [I]f customs agents are reasonably certain that parcels have been (a) smuggled across the border and (b) placed in a vehicle, whether the vehicle has itself crossed the border or not, they may stop and search the vehicle. Similarly, if agents are reasonably certain that a person has crossed the border illegally, and has then entered a vehicle on this side of the border, we think that they may stop and search the vehicle and person. They can assume that he may have brought something with him.” 432 F.2d at 1323. In both of these gre-Almeida-Sanchez lines of Ninth Circuit authority, as well as in the two examples offered by the Supreme Court in Almeida-Sanchez, although the search was not conducted precisely at the border, it still was directly related to a recent entry from across a border. See United States v. Almeida-Sanchez, 452 F.2d at 463 (dissenting opinion of Browning, J.), rev’d, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). It is clear that the search conducted in the present case lacks the vital connection between the vehicle stopped and a reasonable certainty, or even a probability, that it or its contents had recently crossed an international border. The checkpoint was approximately 36 air miles and 49 highway miles north of the Mexican border. Several significant population centers and highways, including Interstate 8, a major east-west freeway that connects the Southwest with the West Coast, lie between the checkpoint and the border. Under these circumstances, border-patrol agents had no reason to believe that virtually all or even most of the cars passing through their checkpoint had recently, or ever, crossed the border. Moreover, there was neither the continuing surveillance from the border nor the dependable intelligence from other sources required to fit this case into the Alexander line of decisions ; nor was there the reasonable certainty that the vehicle contained either recently smuggled goods or aliens required under the Weil line. See United States v. Petersen, 473 F.2d 874 (9th Cir. 1973); United States v. Mitchell, 472 F.2d 67, 68 n. 1 (9th Cir. 1973). Hence, the record in this case clearly indicates that the search conducted was not the functional equivalent of a border search. Were the record more equivocal, we would not hesitate to remand the case to the district court for a determination of functional equivalency. Where the record is as clear as it is here, however, we see no need for a remand. As its last line of defense, the government argues that fixed-checkpoint searches, even if not the functional equivalent of border searches, should be upheld simply because they are urgently needed. The government’s difficulty in detecting and repatriating illegal aliens along our southern boundary needs no new documentation here. The short answer to this argument, however, is that necessity alone cannot override the Fourth Amendment’s prohibition against unreasonable searches and seizures. A similar argument was made and rejected in Almeida-Sanchez itself. See 413 U.S. at 293 (dissenting opinion of White, J.). Mr. Justice Powell in his concurring opinion in Almeida-Sanchez suggested that warrants based on area-wide conditions could be employed to resolve the contending interests of law enforcement and Fourth Amendment safeguards. 413 U.S. at 275-285; see generally The Supreme Court — 1972 Term, 87 Harv.L. Rev. 55, 200-04 (1973). Since the government did not seek such a warrant in this ease, we need not now express an opinion on a hypothetical search conducted pursuant to a judicial warrant authorizing searches for a limited time at a specific checkpoint. We refer to Mr. Justice Powell’s opinion here merely to suggest to the government that procedures less offensive to the Fourth Amendment than judicially unapproved checkpoint searches might be devised and implemented to supplement its program for enforcing immigration laws. Our conclusion that Almeida-Sanchez is as applicable to fixed-checkpoint searches as to roving-patrol searches is consistent with that reached by the Court of Appeals for the Fifth Circuit in United States v. Speed, 489 F.2d 478 (5th Cir. 1973). There, the court held that a border-patrol search at temporary checkpoint on a north-south highway approximately 65 to 75 miles north of the Mexican border was neither a border search nor a functional equivalent of a border search and, hence, was unconstitutional. The court commented, “The distinction between a checkpoint and a roving patrol is not important.” 489 F.2d at 480. Likewise, the Court of Appeals for the Tenth Circuit has held that a warrant-less search, without probable cause, of an automobile at the checkpoint at Truth or Consequences, New Mexico, violates the Fourth Amendment unless a search at that checkpoint could be deemed the functional equivalent of a border search. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Maddox, 485 F.2d 361 (10th Cir. 1973). We hold here that under the rule announced by the Supreme Court in Almei-da-Sanchez the search of Bowen’s camper truck violated the Fourth Amendment because the search was not the functional equivalent of a border search and was authorized neither by warrant nor by probable cause. Circuit Judges MERRILL, BROWNING, DUNIWAY, ELY, HUFSTEDLER and TRASK concur in this majority opinion (Part I). [Part I] . Mr. Justice Stewart’s opinion is explicitly identified as “the opinion of the Court.” It was approved by a majority of five justices, including Mr. Justice Powell, who stated, “ * * * I join the opinion of the Court * * 413 U.S. at 275. Mr. Justice Powell has demonstrated elsewhere that he understands the difference between concurring in an opinion and concurring only in its result. Compare Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 637, 93 S.Ct. 2469, 2487, 37 L.Ed.2d 207 (1973) (“I concur in Part II of the Court’s opinion * * . As to Part 1*1 concur only in the result * .”) with Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 651, 94 S.Ct. 791, 802, 39 L.Ed.2d 52, 42 U.S.L.W. 4186, 4192 (1974) (“I concur in the Court’s result, but I am unable to join its opinion.”) and Frontiero v. Richardson, 411 U.S. 677, 691, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (concurring only in judgment). The language of Mr. Justice Powell’s concurrence in Almeida-Sanchez strongly suggests that his concurrence was not limited to the result. Moreover, his concurring opinion was written primarily to elaborate his views on an issue not presented by the facts of Almeida-Sanchez and not reached by the other justices (but, see 413 U.S. at 270 n. 3) : whether a roving search would be sustainable if it were based on an area search warrant. . But see Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), in which the Supreme Court of Pennsylvania held that a routine check of a motor vehicle to determine whether it and its operator were properly licensed violates the Fourth Amendment. See also State v. Cloman, 254 Or. 1, 6 n. 2, 456 P.2d 67, 69 n. 2 (1969), in which the Supreme Court of Oregon expressly reserved ruling upon “the right to stop and examine the driver’s operating license or the right to stop at a general roadblock.” See generally Note, Xonarrest Automobile Stops: Unconstitutional Seizures of the Person, 25 Stan.L.llev. 865 (1973). . Mr. Justice Powell in his concurrence also noted: “The search here involved * * was not a border search, nor can it fairly be said to have been a search conducted at the ‘functional equivalent’ of the border.” 413 U.S. at 275-276. . See also United States v. Mejias, 452 F.2d 1190, 1192-1193 (9th Cir. 1971); United States v. Terry, 446 F.2d 579 (9th Cir.), cert. denied, 404 U.S. 946, 92 S.Ct. 301, 30 L.Ed.2d 261 (1971); Castillo-Garcia v. United States, 424 F.2d 482, 484-485 (9th Cir. 1970); Bloomer v. United States, 409 F.2d 869, 870-871 (9th Cir. 1969); GonzalezAlonso v. United States, 379 F.2d 347, 349-350 (9th Cir. 1967); Rodriquez-Gonzalez v. United States, 378 F.2d 256, 258 (9th Cir. 1967); Leeks v. United States, 356 F.2d 470, 471 (9th Cir. 1966); King v. United States, 348 F.2d 814, 816 (9th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 314, 15 L.Ed.2d 339 (1965); Murgia v. United States, 285 F.2d 14 (9th Cir. 1960), cert. denied, 366 U.S. 977, 81 S.Ct. 1946, 6 L.Ed.2d 1265 (1961), cert. denied, 376 U.S. 946, 84 S.Ct. 803, 11 L.Ed.2d 769 (1964). . See also United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971); United States v. Markham, 440 F.2d 1119, 1121-1123 (9th Cir. 1971). See generally Note, From Bags to Body Cavities: The Law of Border Search, 74 Colum.L.Rev. 53 (1974) ; Note, In Search of the Border: Searches Conducted by Federal Customs and Immigration Officers, 5 N.Y.U.J. Int’l L. & Politics 93 (1972). . Cf. United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Maddox, 485 F.2d 361 (10th Cir. 1973). Both cases held that a warrantless search, without probable cause, of an automobile at the checkpoint in Truth or Consequences, New Mexico, violates the Fourth Amendment unless a search at that checkpoint could be deemed the functional equivalent of a border search. Both cases were remanded to the district court for determination of that issue. However, beyond directing the district court to interpret the phrase as it was used in Almeida-Sanchez, the opinions offer no guidance in defining the functional equivalent of a border search. Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. UNITED STATES of America, Plaintiff-Appellee, v. James LENDMANN, Defendant-Appellant. No. 84-1141. United States Court of Appeals, Seventh Circuit. Argued Jan. 29, 1985. Decided March 20, 1985. Thomas J. Scorza, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, 111., for plaintiff-appellee. Joshua Sachs, Chicago, 111., for defendant-appellant. Before CUDAHY, POSNER and FLAUM, Circuit Judges. FLAUM, Circuit Judge. James Lendmann was convicted in the United States District Court for the Northern District of Illinois of manufacturing, and attempting to manufacture, methamphetamine. Lendmann now appeals. We affirm. On September 22, 1982, agents of the Drug Enforcement Administration (DEA) and local police executed a search warrant at a commercial building in Villa Park, Illinois. The warrant authorized a search for a methamphetamine laboratory operation. A small chemical laboratory was found from which were seized various pieces of laboratory equipment, chemicals and a box containing textbooks, articles and notes on methods of making methamphetamine and related drugs. As a result, James Lendmann was charged in a three-count federal indictment. Counts I and II, respectively, charged that Lendmann manufactured, and possessed with intent to distribute, 3.59 grams of a methamphetamine mixture, a Schedule II controlled substance. 21 U.S.C. § 841(a)(1). Count III charged a violation of 21 U.S.C. §§ 841(a)(1) and 846, attempting to manufacture an additional quantity of methamphetamine. At trial, a DEA chemist testified that among the chemical samples seized was 3.59 grams of methamphetamine. The chemist further testified that there were enough chemicals to manufacture approximately one kilogram of methamphetamine. Testifying in his own defense, Lendmann admitted control of the laboratory and ownership of the equipment, chemicals and papers seized. He also admitted to the manufacture and possession of methamphetamine and testified that he knew methamphetamine was an illegal drug. However, Lendmann claimed that he had not compounded the methamphetamine for drug use or distribution but rather as an intermediate step in the extraction of platinum from the used catalytic converters of automobiles. In the process, Lendmann asserted, the methamphetamine would ultimately be completely destroyed. In rebuttal, a DEA agent testified that at the time of execution of the search warrant he had a conversation with Lendmann in which Lendmann told him that he planned to sell the methamphetamine he made to another person. The jury returned verdicts of guilty on Counts I and III and not guilty on Count II, and Lendmann was subsequently sentenced to concurrent terms of five years imprisonment on Counts I and III and to a two-year special parole to follow his sentence on Count I. However, execution of sentence was suspended, and Lendmann was placed on five years probation conditioned upon a six month term at the Metropolitan Correctional Center on a work release program. Lendmann was also fined $5,000. On appeal Lendmann raises one issue. He argues that his conduct was not within the scope of conduct Congress sought to criminalize when it enacted §§ 841(a)(1) and 846. We disagree. As a necessary premise to his argument, Lendmann initially claims that his acquittal on Count II can only mean that the jury credited “Lendmann’s own explanation ... that he made methamphetamine only as an intermediate step in a process which contemplated destruction of all the methamphetamine by the time the process would be completed.” Otherwise, Lendmann argues, the guilty verdicts on Counts I and III are inconsistent with his acquittal on Count II. First of all, we note that it is not the court’s function “to reassess a jury’s credibility determinations.” United States v. McComb, 744 F.2d 555, 566 (7th Cir.1984). Even so, we find Lendmann’s argument illusory. In many circumstances “intent to distribute” is established by circumstantial evidence, including evidence as to the quantity of drugs seized. See United States v. Hill, 589 F.2d 1344, 1350 (8th Cir.1979); United States v. Marchildon, 519 F.2d 337, 345 (8th Cir.1975). However, just as it is permissible to draw an inference of intent to distribute from the possession of a large quantity of a controlled substance, United States v. Brischetto, 538 F.2d 208, 210 (8th Cir.1976), a jury is equally free not to make such an inference. Id. An inference of a lack of intent to distribute is even more compelling, with nothing more, from a small quantity. As Lendmann argued at trial, the amount of methamphetamine seized by DEA agents was very small, weighing, he said, only about as much as a U.S. penny. The jury may well have concluded that the amount charged in Count II (3.59 grams) was too small to be intended for distribution, and, consistent with its guilty verdicts on Counts I and III, still have chosen not to credit Lendmann’s theory of defense. Were we to assume, however, the veracity of Lendmann’s testimony, the issue for review, as Lendmann argues, resolves itself into the question whether a person who concededly manufactures or attempts to manufacture, a controlled substance without the intent to distribute but solely to use as an intermediate step in a chemical process which contemplates destruction of all the illicit substance upon completion of the process falls within the criminal prohibitions of 21 U.S.C. §§ 841 and 846. Lendmann candidly admits that his conduct is violative of the broad language of §§ 841 and 846. Contrary to Lendmann’s argument, however, Congress intended to make such conduct punishable as a crime. In pertinent part, 21 U.S.C. § 841 reads: (1) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance____ Section 822(b) of Title 21, United States Code, specifies those activities authorized by the subchapter and by implication fleshes out the “[ejxcept as authorized by this subchapter” phrase of § 841: Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances are authorized to possess, manufacture, distribute, or dispense such substances (including any such activity in the conduct of research) to the extent authorized by their registration.... Under a plain reading of these statutes, any person who is not registered by the Attorney General for a given substance is not authorized to manufacture it, and thus is not exempt from prosecution under § 841 (or § 846). See United States v. Blanton, 730 F.2d 1425, 1429 (11th Cir.1984) (conviction under § 841(a)(1) of physician not registered to dispense methaqualone, a controlled substance, upheld). Lendmann attempts to avoid this conclusion by arguing that §§ 841 and 846 were designed to punish drug trafficking rather than providing a technical basis upon which convictions of persons not involved in such trafficking may be obtained. In support of his argument, Lendmann relies on the testimony of Dr. Sarah Miles Woods, a professor of chemistry at Roosevelt University. According to Dr. Woods, inevitably, a scientist engaged in legitimate experimentation can never be certain that a process designed to synthesize a compound might not as an intermediate step yield a controlled substance. Citing no authority to support his position, Lendmann argues it was not the intent of Congress to make conduct involving legitimate research punishable as manufacturing offenses under 21 U.S.C. §§ 841(a)(1) and 846. Lendmann errs, however, in his interpretation of Congress’ intent in the passage of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. In enacting the Controlled Substances Act, “Congress was particularly concerned with the diversion of drugs from legitimate channels to illegitimate channels.” United States v. Moore, 423 U.S. 122, 135, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). The Act, there-, fore, was an attempt to limit this diversion by strict registration requirements for all persons who are authorized to legitimately work with controlled substances in order to closely monitor the flow of controlled substances from manufacturer to consumer. United States v. Blanton, 730 F.2d at 1427-1428. Indeed, Congress was not so naive as to fail to recognize that registrants, who invariably have the greatest access to controlled substances and therefore the greatest opportunity for diversion, were responsible for a large part of the illegal drug traffic. United States v. Moore, 423 U.S. at 135, 96 S.Ct. at 342. Registration, then, was meant to circumscribe the authority to manufacture controlled substances and was acknowledged as perhaps the only means of ascertaining all those individuals who work with such substances. 116 Cong.Rec. 1664 (1970) (remarks of Sen. Hruska). It seems eminently clear that Congress meant to prohibit all activities, legitimate or otherwise, of unregistered manufacturers of controlled substances and intended that their conduct be punishable under §§ 841(a)(1) and 846. See United States v. Fooladi, 746 F.2d 1027, 1032 (5th Cir.1984) (convictions of unregistered chemist for manufacturing and attempting to manufacture controlled substances under §§ 841(a)(1) and 846 in a home laboratory upheld). Lendmann, not registered to manufacture methamphetamine, falls within the conduct prohibited by 21 U.S.C. §§ 841(a)(1) and 846. Viewing, then, the evidence and all reasonable inferences therefrom in a light most favorable to the government, United States v. Wiehoff, 7.48 F.2d 1158, 1161 (7th Cir.1984), we conclude that the record contains sufficient evidence from which a reasonable trier of fact could find Lendmann guilty beyond a reasonable doubt. Lendmann admitted compounding the 3.59 grams of methamphetamine found in his laboratory knowing that it was an illegal drug and that he had accumulated the necessary equipment and materials to manufacture another kilogram of the substance. Various articles and notes on the manufacturing of methamphetamine were discovered at Lendmann’s laboratory while no written materials were found on the chemical processes involved in the recovery of platinum. An inspection of the papers seized from the laboratory further uncovered an article entitled “Clandestine Drug Laboratories.” Lendmann admitted ownership of all the equipment, chemicals and papers seized. The search, however, uncovered no catalytic converters or platinum residue. Lendmann introduced no records or notes of his experimentation in platinum extraction, but instead relied solely on his own testimony and that of Dr. Woods that a platinum extracting process using methamphetamine was chemically feasible. And despite the testimony of Douglas Schwabe, who rented space in the same building as Lendmann, that he had seen four catalytic converters at Lendmann’s laboratory, Lendmann did not produce or introduce at his trial any converters. The jury was certainly free to reject Lendmann’s defense and infer that Lendmann was not involved in legitimate research or experimentation. Accordingly, the judgments of conviction are AFFIRMED. . Even assuming arguendo that the guilty verdicts were to some extent inconsistent with his acquittal, this court has held that jury verdicts " 'reflecting compromise or even inconsistency [are] permissible and legitimate,’ ” so long as the evidence to support the counts on which the defendant was actually convicted is sufficient. United States v. McComb, 744 F.2d at 566, quoting United States v. Fields, 689 F.2d 122, 126 (7th Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 935 (1982). See discussion infra. . 21 U.S.C. § 846 provides, in relevant part, that "[a]ny person who attempts ... to commit any offense defined in this subchapter” shall be guilty of a crime. The phrase “offense defined in this subchapter" includes the offense of manufacturing a controlled substance in violation of 21 U.S.C. § 841(a)(1). . Although not explicitly stated in the record, we assume Lendmann was not registered to manufacture methamphetamine. In any event, Lendmann does not argue on appeal that he was registered to manufacture methamphetamine. . Moreover, the Supreme Court in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), interpreted 21 U.S.C. § 841 and held that even individuals who are registered are not beyond the reach of § 841 simply because of their status (e.g., a physician). Id. at 131-132, 96 S.Ct. at 340 (a registered physician violates § 841 when he exceeds the usual course of professional practice). See also United States v. Betancourt, 734 F.2d 750, 757 (11th Cir.1984). Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_petitioner	137	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. DOE v. CHAO, SECRETARY OF LABOR No. 02-1377. Argued December 3, 2003 Decided February 24, 2004 Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined, and in which Sc alia, J., joined except as to the penultimate paragraph of Part III and footnote 8. Ginsburg, J., filed a dissenting opinion, in which Stevens and Breyer, JJ., joined, post, p. 627. Breyer, J., filed a dissenting opinion, post, p. 641. Jack W. Campbell IV argued the cause for petitioner. With him on the briefs were Donald B. Ayer, Dominick V. Freda, and Joseph E. Wolfe. Malcolm L. Stewart argued the cause for respondent. With him on the brief were Solicitor General Olson, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Patricia A. Millett, Leonard Schaitman, Anthony A. Yang, Howard M. Radzely, Allen H. Feldman, Nathaniel I. Spiller, and Michael P. Doyle. David K. Colapinto, Stephen M. Kohn, and Michael D. Kohn filed a brief for Linda R. Tripp et al. as amici curiae urging reversal. Briefs of amici curiae were filed for the Electronic Privacy Information Center et al. by Marc Rotenberg and David L. Sobel; and for the Reporters Committee for Freedom of the Press by Lucy A Dalglish. Justice Souter delivered the opinion of the Court. The United States is subject to a cause of action for the benefit of at least some individuals adversely affected by a federal agency’s violation of the Privacy Act of 1974. The question before us is whether plaintiffs must prove some actual damages to qualify for a minimum statutory award of $1,000. We hold that they must. HH Petitioner Buck Doe filed for benefits under the Black Lung Benefits Act, 83 Stat. 792, 30 U. S. C. § 901 et seq., with the Office of Workers’ Compensation Programs, the division of the Department of Labor responsible for adjudicating it. The application form called for a Social Security number, which the agency then used to identify the applicant’s claim, as on documents like “multicaptioned” notices of hearing dates, sent to groups of claimants, their employers, and the lawyers involved in their cases. The Government concedes that following this practice led to disclosing Doe’s Social Security number beyond the limits set by the Privacy Act. See 5 U. S. C. § 552a(b). Doe joined with six other black lung claimants to sue the Department of Labor, alleging repeated violations of the Act and seeking certification of a class of “ ‘all claimants for Black Lung Benefits since the passage of the Privacy Act.’” Pet. for Cert. 6a. Early on, the United States stipulated to an order prohibiting future publication of applicants’ Social Security numbers on multicaptioned hearing notices, and the parties then filed cross-motions for summary judgment. The District Court denied class certification and entered judgment against all individual plaintiffs except Doe, finding that their submissions had raised no issues of cognizable harm. As to Doe, the court accepted his uncontroverted evidence of distress on learning of the improper disclosure, granted summary judgment, and awarded $1,000 in statutory damages under 5 U. S. C. § 552a(g)(4). A divided panel of the Fourth Circuit affirmed in part but reversed on Doe’s claim, holding the United States entitled to summary judgment across the board. 306 F. 3d 170 (2002). The Circuit treated the $1,000 statutory minimum as available only to plaintiffs who suffered actual damages because of the agency’s violation, id., at 176-179, and then found that Doe had not raised a triable issue of fact about actual damages, having submitted no corroboration for his claim of emotional distress, such as evidence of physical symptoms, medical treatment, loss of income, or impact on his behavior. In fact, the only indication of emotional affliction was Doe’s conclusory allegations that he was “ ‘torn ... all to pieces’” and “‘greatly concerned and worried’” because of the disclosure of his Social Security number and its potentially “ ‘devastating’ ” consequences. Id., at 181. Doe petitioned for review of the holding that some actual damages must be proven before a plaintiff may receive the minimum statutory award. See Pet. for Cert. i. Because the Fourth Circuit’s decision requiring proof of actual damages conflicted with the views of other Circuits, see, e. g., Orekoya v. Mooney, 330 F. 3d 1, 7-8 (CA1 2003); Wilborn v. Department of Health and Human Servs., 49 F. 3d 597, 603 (CA9 1995); Waters v. Thornburgh, 888 F. 2d 870,872 (CADC 1989); Johnson v. Department of Treasury, IRS, 700 F. 2d 971, 977, and n. 12 (CA5 1983); Fitzpatrick v. IRS, 665 F. 2d 327, 330-331 (CA11 1982), we granted certiorari. 539 U. S. 957 (2003). We now affirm. II [I]n order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary ... to regulate the collection, maintenance, use, and dissemination of information by such agencies.” Privacy Act of 1974, § 2(a)(5), 88 Stat. 1896. The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government’s part to comply with the requirements. Subsection (g)(1) recognizes a civil action for agency misconduct fitting within any of four categories (the fourth, in issue here, being a catchall), 5 U. S. C. §§552a(g)(l)(A)-(D), and then makes separate provision for the redress of each. The first two categories cover deficient management of records: subsection (g)(1)(A) provides for the correction of any inaccurate or otherwise improper material in a record, and subsection (g)(1)(B) provides a right of access against any agency refusing to allow an individual to inspect a record kept on him. In each instance, further provisions specify such things as the de novo nature of the suit (as distinct from any form of deferential review), §§552a(g)(2)(A), (g)(3)(A), and mechanisms for exercising judicial equity jurisdiction (by in camera inspection, for example), § 552a(g)(3)(A). The two remaining categories deal with derelictions having consequences beyond the statutory violations per se.. Subsection (g)(1)(C) describes an agency’s failure to maintain an adequate record on an individual, when the result is a determination “adverse” to that person. Subsection (g)(1)(D) speaks of a violation when someone suffers an “adverse effect” from any other failure to hew to the terms of the Act. Like the inspection and correction infractions, breaches of the statute with adverse consequences are addressed by specific terms governing relief: “In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of— “(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and “(B) the costs of the action together with reasonable attorney fees as determined by the court.” §552a (g)(4). III Doe argues that subsection (g)(4)(A) entitles any plaintiff adversely affected by an intentional or willful violation to the $1,000 minimum on proof of nothing more than a statutory violation: anyone suffering an adverse consequence of intentional or willful disclosure is entitled to recovery. The Government claims the minimum guarantee goes only to victims who prove some actual damages. We think the Government has the better side of the argument. To begin with, the Government’s position is supported by a straightforward textual analysis. When the statute gets to the point of guaranteeing the $1,000 minimum, it not only has confined any eligibility to victims of ádverse effects caused by intentional or willful actions, but has provided expressly for liability to such victims for “actual damages sustained.” It has made specific provision, in other words, for what a victim within the limited class may recover. When the very next clause of the sentence containing the explicit provision guarantees $1,000 to a “person entitled to recovery,” the simplest reading of that phrase looks back to the immediately preceding provision for recovering actual damages, which is also the Act’s sole provision for recovering anything (as distinct from equitable relief). With such an obvious referent for “person entitled to recovery” in the plaintiff who sustains “actual damages,” Doe’s theory is immediately questionable in ignoring the “actual damages” language so directly at hand and instead looking for “a person entitled to recovery” in a separate part of the statute devoid of any mention either of recovery or of what might be recovered. Nor is it too strong to say that Doe does ignore statutory language. When Doe reads the statute to mean that the United States shall be liable to any adversely affected subject of an intentional or willful violation, without more, he treats willful action as the last fact necessary to make the Government “liable,” and he is thus able to describe anyone to whom it is liable as entitled to the $1,000 guarantee. But this way of reading the statute simply pays no attention to the fact that the statute does not speak of liability (and consequent entitlement to recovery) in a freestanding, unqualified way, but in a limited way, by reference to enumerated damages. Doe’s manner of reading “entitle[ment] to recovery” as satisfied by adverse effect caused by intentional or willful violation is in tension with more than the text, however. It is at odds with the traditional understanding that tort recovery requires not only wrongful act plus causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed. See, e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 30 (5th ed. 1984). Doe, instead, identifies a person as entitled to recover without any reference to proof of damages, actual or otherwise. Doe might respond that it makes sense to speak of a privacy tort victim as entitled to recover without reference to damages because analogous common law would not require him to show particular items of injury in order to receive a dollar recovery. Traditionally, the common law has provided such victims with a claim for “general” damages, which for privacy and defamation torts are presumed damages: a monetary award calculated without reference to specific harm. Such a rejoinder would not pass muster under the Privacy Act, however, because a provision of the Act not previously mentioned indicates beyond serious doubt that general damages are not authorized for a statutory violation. An uncod-ified section of the Act established a Privacy Protection Study Commission, which was charged, among its other jobs, to consider “whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(l)(C) or (D) of title 5.” § 5(c)(2)(B)(iii), 88 Stat. 1907. Congress left the question of general damages, that is, for another day. Because presumed damages are therefore clearly unavailable, we have no business treating just any adversely affected victim of an intentional or willful violation as entitled to recovery, without something more. This inference from the terms of the Commission’s mandate is underscored by drafting history showing that Congress cut out the very language in the bill that would have authorized any presumed damages. The Senate bill would have authorized an award of “actual and general damages sustained by any person,” with that language followed by the guarantee that “in no case shall a person entitled to recovery receive less than the sum of $1,000.” S. 3418, 93d Cong., 2d Sess., § 303(c)(1) (1974). Although the provision for general damages would have covered presumed damages, see n. 3, supra, this language was trimmed from the final statute, subject to any later revision that might be recommended by the Commission. The deletion of “general damages” from the bill is fairly seen, then, as a deliberate elimination of any possibility of imputing harm and awarding presumed damages. The deletion thus precludes any hope of a sound interpretation of entitlement to recovery without reference to actual damages. Finally, Doe’s reading is open to the objection that no purpose is served by conditioning the guarantee on a person’s being entitled to recovery. As Doe treats the text, Congress could have accomplished its object simply by providing that the Government would be liable to the individual for actual damages “but in no case . . . less than the sum of $1,000” plus fees and costs. Doe’s reading leaves the reference to entitlement to recovery with no job to do, and it accordingly accomplishes nothing. > There are three loose ends. Doe's argument suggests it would have been illogical for Congress to create a cause of action for anyone who suffers an adverse effect from intentional or willful agency action, then deny recovery without actual damages. But this objection assumes that the language in subsection (g)(1)(D) recognizing a federal “civil action” on the part of someone adversely affected was meant, without more, to provide a complete cause of action, and of course this is not so. A subsequent provision requires proof of intent or willfulness in addition to adverse effect, and if the specific state of mind must be proven additionally, it is equally consistent with logic to require some actual damages as well. Nor does our view deprive the language recognizing a civil action by an adversely affected person of any independent effect, for it may readily be understood as having a limited but specific function: the reference in § 552a(g)(l)(D) to “adverse effect” acts as a term of art identifying a potential plaintiff who satisfies the injury-in-fact and causation requirements of Article III standing, and who may consequently bring a civil action without suffering dismissal for want of standing to sue. See Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 126 (1995) (“The phrase ‘person adversely affected or aggrieved’ is a term of art used in many statutes to designate those who have standing to challenge or appeal an agency decision, within the agency or before the courts”); see also 5 U. S. C. §702 (providing review of agency action under the Administrative Procedure Act to individuals who have been “adversely affected or aggrieved”). That is, an individual subjected to an adverse ef-feet has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act. Next, Doe also suggests there is something peculiar in offering some guaranteed damages, as a form of presumed damages not requiring proof of amount, only to those plaintiffs who can demonstrate actual damages. But this approach parallels another remedial scheme that the drafters of the Privacy Act would probably have known about. At common law, certain defamation torts were redressed by general damages but only when a plaintiff first proved some “special harm,” i. e., “harm of a material and generally of a pecuniary nature.” 3 Restatement of Torts §575, Comments a and b (1938) (discussing defamation torts that are “not actionable per se”); see also 3 Restatement (Second) of Torts §575, Comments a and b (1976) (same). Plaintiffs claiming such torts could recover presumed damages only if they could demonstrate some actual, quantifiable pecuniary loss. Because the recovery of presumed damages in these cases was supplemental to compensation for specific harm, it was hardly unprecedented for Congress to make a guaranteed minimum contingent upon some showing of actual damages, thereby avoiding giveaways to plaintiffs with nothing more than “abstract injuries,” Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983). In a final effort to save his claim, Doe points to a pair of statutes with remedial provisions that are worded similarly to § 552a(g)(4). See Tax Reform Act of 1976, § 1201(i)(2)(A), 90 Stat. 1665-1666, 26 U. S. C. §6110(j)(2)(A); § 1202(e)(1), 90 Stat. 1687, 26 U. S. C. § 7217(c) (1976 ed., Supp. V) (repealed 1982); Electronic Communications Privacy Act of 1986, § 201, 100 Stat. 1866,18 U. S. C. § 2707(c). He contends that legislative history of these subsequent enactments shows that Congress sometimes used language similar to 5 U. S. C. §552a(g)(4) with the object of authorizing true liquidated damages remedies. See, e.g., S. Rep. No. 94-938, p. 348 (1976) (discussing § 1202(e)(1) of the Tax Reform Act); S. Rep. No. 99-541, p. 43 (1986) (discussing §201 of the Electronic Communications Privacy Act). There are two problems with this argument. First, as to § 1201(i)(2)(A) of the Tax Reform Act, the text is too far different from the language of the Privacy Act to serve as any sound basis for analogy; it does not include the critical limiting phrase “entitled to recovery.” But even as to § 1202(e)(1) of the Tax Reform Act and § 201 of the Electronic Communications Privacy Act, the trouble with Doe’s position is its reliance on the legislative histories of completely separate statutes passed well after the Privacy Act. Those of us who look to legislative history have been wary about expecting to find reliable interpretive help outside the record of the statute being construed, and we have said repeatedly that “ ‘subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment,’” Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 170, n. 5 (2001) (quoting Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118, n. 13 (1980)). V The “entitlement] to recovery” necessary to qualify for the $1,000 minimum is not shown merely by an intentional or willful violation of the Act producing some adverse effect. The statute guarantees $1,000 only to plaintiffs who have suffered some actual damages. The judgment of the Fourth Circuit is affirmed. It is so ordered. The Privacy Act says nothing about standards 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_crmproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited. EMICH MOTORS CORPORATION v. GENERAL MOTORS CORPORATION. No. 9620-9686. United States Court of Appeals Seventh Circuit. March 3, 1950. Rehearing Denied April 26, 1950. Ferris E. Hurd, Chicago, 111., Henry M. Hogan, Detroit, Mich., Henry F. Herber-mann, New York City (Daniel Boone, Detroit, Mich., Thomas C." Strachan, Jr., Chicago, 111., Charles R. Kaufman, 'Chicago, 111., of counsel), for appellants. Thomas Dodd Healy, Harold Stickler, A. Bradley Eben, Chicago, 111., Martin S. Gerber, Chicago, 111. (Irving Gordon, New York City, Edward Atlas, Chicago, 111., Healy & Stickler, Chicago, 111., of counsel), for appellees. Before MAJOR, Chief Judge, and KER-NER and SWAIM, Circuit Judges. KERNER, Circuit Judge. These are appeals from treble damage judgments and a judgment for costs in a suit brought by two closely related corporations for damages alleged to have been sustained as a result of violation by General Motors and General Motors Acceptance Corporation of the Sherman AntiTrust Act, 15 U.S.C.A. § 1 et seq. The judgments for damages entered upon the verdicts of a jury, one for $1,050,000 in favor of Emich Motors Corporation, and the other in favor of U. S. Acceptance Corporation for $186,000, are for three times the amounts of the verdicts rendered. In addition, the District Court, after hearing further evidence without a jury, entered a supplemental judgment in favor of plaintiffs for costs and expenses in the amount of $257,358.10, of which $250,000 was for attorneys’ fees. Both plaintiff corporations are owned by Fred Emich: one owned two franchises for dealerships for the distribution of Chevrolet automobiles; the other is a finance company, formerly named EMC Finance Company, organized to supply credit facilities for the purchase of new and used automobiles. We shall refer to plaintiffs as Emich Motors and the Finance •Company. 0 The suit was based on a conspiracy which had been the subject of criminal prosecution under an indictment charging that defendants, with others, had combined to restrain interstate trade and commerce in Chevrolet and other automobiles manufactured by General Motors, for the purpose of controlling the financing of wholesale and retail purchases of such automobiles by compelling dealers to use the credit facilities of its subsidiary, the General Motors Acceptance 'Corporation. Defendants were found guilty as charged in the indictment, and this court affirmed that conviction. United States v. General Motors Corp., 7 Cir., 121 F.2d 376, certiorari denied, 314 U.S. 618, 62 S.Ct. 105, 86 L.Ed. 497. Plaintiffs here allege that they were injured by that conspiracy in that, in furtherance thereof, defendants cancelled the franchise contracts under which Emich Motors was engaged in business, thereby destroying the business of that corporation and that of the Finance Company which derived its business from furnishing credit facilities for the purchase and sale of new and used automobiles by that corporation. Plaintiffs relied on § 4 of the Clayton Act for their right to recover for injuries arising out of the violation of the Sherman Act for which defendants had previously been convicted, and § 5 for aid in the presentation of tlieir case. 15 U.S.C.A. §§ 15 and 16. They therefore attached to their complaint a copy of the indictment charging the conspiracy of which defendants had been found guilty. Defendants in their answer denied that the cancellation of the two franchises had been caused by Emich Motor’s refusal to .use GMAC or was connected with any conspiracy or illegality. They asserted, on the contrary, that the reason for the cancellation was the violation by Emich Motors of the terms of the franchises and a course of conduct relating to customer service and financing practices resulting in serious dissatisfaction on the part of Chevrolet purchasers and justifying termination of the franchises. Inasmuch as various questions are raised on these appeals as to the availability and applicability of the earlier proceeding to this suit we deem it advisable first briefly to set forth the facts as to the criminal suit. Our outline of these facts is largely derived from the opinion of this court affirming the judgment of conviction. In essence, the indictment charged that defendants, with others, conspired to restrain unreasonably the interstate trade and commerce in Chevrolet and other automobiles manufactured by General Motors, for the purpose of controlling the financing essential to the wholesale purchase and retail sale of such cars, and that in furtherance of this purpose the conspirators devoted themselves to concerted action by which GMAC was imposed on dealers who were engaged in the purchase and sale of General Motors cars. The specific conduct charged in furtherance of the illegal purposes was: (1) Requiring dealers to promise to use GMAC exclusively as a condition to obtaining General Motors franchises; (2) making contracts for short periods and cancellable without cause, cancelling or threatening to cancel such contracts unless GMAC facilities were used; (3) discriminating against dealers not using GMAC by refusing to deliver cars when ordered, delaying shipment and shipping cars of different number, model, color or style; (4) compelling dealers to disclose how they financed their wholesale purchases and retail sales, examining and inspecting books and accounts in order to procure this information, and requiring dealers to justify their using other financing media; (5) giving special favors to dealers using the wholesale and retail facilities of GMAC; (6) granting special favors to GMAC which were denied to other discount companies; (7) giving dealers a rebate from the GMAC financing facilities; and (8) compelling dealers to refrain from using other finance companies by all other necessary, appropriate or effective means. Included in the evidence introduced to sustain the charge of conspiracy to compel dealers to use GMAC financing was that of thirty-eight then dealers and ten ex-dealers, including Emich whose corporations are the plaintiffs here. Emich testified that he had been a Chevrolet dealer in Chicago from 1932 to 1936, and that because he owned his own finance company which he insisted upon using for his purchases and sales, he received unordered cars and trucks and experienced other difficulties in his business which he said he was told would cease if he would give GMAC his finance business. I lis franchises were cancelled in 1936, and he testified that upon his appeal to the president of General Motors for reinstatement he was told that the cancellation was for his failure to use GMAC and that it was the policy of General Motors to require dealers to use the facilities of that corporation, and if he would not agree to do so it would be useless for the president of General Motors to discuss reinstatement with the appropriate Chevrolet officials. In instructing the jury, the court pointed out the limits within which the defendants might promote GMAC, and stated that they had a right to select any dealers they saw fit, determine upon what terms to sell their cars, expound the advantages of GMAC, and persuade dealers to use it. But the court added that they could not utilize existing and prospective contracts with dealers as “clubs or instruments of coercion” to compel acceptance of GMAC, and then stated that that was in effect the fact question of the case, whether the dealer could act as a free man, of his own free will. The court further stated, in response to defendants’ request for a further instruction, that it correctly stated the law: “ * * * if the jurors find that General Motors dealers have been restrained as a result of an agreement entered into among the defendants, effectuated by the acts alleged in the indictment, they should find the defendants not guilty, unless they also find that the interstate trade and commerce in General Motors automobiles which moves through the retail outlet which those dealers constitute * * * have been unduly restrained as a result thereof.” Further portions of the instructions, not referred to in our earlier opinion but which become significant on these appeals, were to the effect that it was. not necessary for the Government to prove all of the acts alleged; that, “It is essential that they prove this conspiracy, and if you believe that the evidence is sufficient to sustain that conclusion, then you have a right to find that there is a conspiracy, but it is not essential to that conclusion that each and every one of the acts charged in the indictment shall be proved,” and that, “They have a perfect right to have a finance company and to recommend its use.- They have a perfect right to cancel a contract from their dealer as long as they are not performing any unreasonable act.” ■ The jury found all corporate defendants guilty as charged in the indictment, and acquitted all individual defendants. 1 In presenting the case here involved; plaintiffs relied upon the judgment of conviction in the criminal case.' In addition they • introduced the evidence of sixteen-dealer witnesses who described their own experiences with defendants, and all of whom asserted that'their own dealerships were either cancelled’ for failure to usé GMA'C or continued only upon th’eir promise to use it. -Emich himself testified as to the facts alleged to have, led up to the cancellations and also' as to damages , suffered by both his corporations. Other witnesses testified1 as to the'matter of damages alleged to have been suffered by plaintiffs. Plaintiffs also introduced a large number of documentary exhibits, most of which were obtained from defendants’ files in response to discovery and other pre-trial proceedings. Inasmuch as no ' question ' is raised as to the sufficiency of the evidence to support the verdicts on which the judgments are based, we deem it unnecessary to set forth any of that evidence here. The serious questions on these appeals have to do with the admission and exclusion of evidence. Defendants contend that they were prevented from adequately presenting to the jury their evidence showing their actual reasons for terminating the Emich dealerships and the justification for such terminations, while at the same time they were seriously prejudiced by the introduction of the judgment in the criminal, proceeding which they assert was inadmissible as to the issues of this case, which prejudice was aggravated by permitting the indictment to go to the jury as an exhibit in the case, and by confusing and misleading instructions as to the applicability of the criminal judgment and record pertaining thereto. Although plaintiffs stated in their briefs on appeal that they relied on the judgment in the criminal case “as an independent statutory method of making a prima facie case showing the existence of the conspiracy,” they also contend that they were entitled to rely on the prior proceedings as an estoppel extending “to such matters as the existence of the conspiracy, the means, and the acts committed in furtherance thereof, all as charged in the indictment.” They assert that Local 167, International Brotherhood of Teamsters v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804, is authority for this contention. An examination of the proceedings in that-case discloses a very different situation from the one here involved. The suit there was one in equity against sixty-eight defendants, three of which were unincorporated associations and the balance individuals who had previously been found guilty of conspiracy to restrain interstate commerce in live and dressed poultry in the New York area. The suit also named a number of additional individual defendants not brought into the earlier criminal proceed-' ings. -When all the defendants filed answer denying the chárgés of the conspiracy, the court granted the: motion of fhe Government to strike the’ pleading as to the previously convicted defendants, holding that such denials were obviously sham, and made for obstructive purposes. The case establishes, in effect, that the prior criminal conviction is res judicata as to the fact of the conspiracy and every matter essential to establish it as against the parties to the earlier proceeding. See Note, 44 H.L.R. (1930-31) 997. And under § 5 of the Clayton Act, parties suing for redress of injuries resulting from violation of the antitrust laws may utilize a previous proceeding to the same extent as could the parties thereto. However, it remains a matter for the court to determine the scope and applicability of the previous judgment, as it did in the New York case, and certainly it could not rightly be held here that the judgment convicting the corporate defendants and acquitting all the individual defendants through whom the corporations must have acted, operated as an estoppel not only as to the fact of the existence of the conspiracy but also as to all the means and acts charged in the indictment, as plaintiffs would have us hold. “Where an indictment charges various means by which the conspiracy is effectuated, not all of them need be proved.” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250, 60 S.Ct. 811, 856, 84 L.Ed. 1129. That being the case, a judgment on such an indictment does not establish the performance of all the means charged. Defendants’ theory as to the applicability of the judgment goes to the other extreme. They contend that a proper inspection of the entire record in the criminal proceeding, the admissibility of which they concede for this limited purpose, discloses that it did not constitute an estoppel as to any fact material to the issues in this case. They define the essential elements of this action under 15 U.S.C.A. § 15 as: 1. A general conspiracy by defendants to delay deliveries of cars and to cancel dealers who did not finance through GMAC. 2. An impact of some illegal activity engaged in by defendants in the course of such conspiracy, i. e., delays or cancellations, upon plaintiffs’ business or property. 3. Damages proximately resulting from such impact. Obviously the judgment has nothing to do with the third element, and they urge that it also has no bearing on the first two for the reason that under the instructions to the jury, the question whether the conspiracy was to delay deliveries or to cancel franchises was left open, and the jury could have found defendants guilty of the conspiracy even though it did not consider them guilty of these two particular acts. Defendants further urge that inasmuch as the indictment charged restraint in the trade in all General Motors automobiles as well as Chevrolet, it left open the question whether the restraint was directed to Chevrolet dealers. They rely on Russell v. Place, 94 U.S. 606, 24 L.Ed. 214, where the Court held that an estoppel by judgment exists only as to factual issues that can be shown definitely to have been determined by the prior action. We are convinced that the meaning defendants seek to give to the judgment is too limited, and that plaintiffs were entitled to rely upon it as prima facie evidence that defendants had been guilty of a conspiracy to restrain dealers’ interstate trade and commerce in General Motors cars for the purpose of monopolizing the financing essential to the movement of those cars. This was the basis for their statutory cause of action for treble damages. The preparation of the proper pleading for AntiTrust Act suits requires a statement of matters and their relation to each other far more extensive than that in a simple pleading in negligence or on contract. See Beegle v. Thomson, 7 Cir., 138 F.2d 875; United States v. Schine Chain Theatres, D.C., 31 F.Supp. 270. A complaint to state a cause of action must show not only damages sustained by the individual plaintiff, but also a violation of public rights prohibited by the Act. Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165, 35 S.Ct. 398, 59 L.Ed. 520, Ann.Cas.l916A, 118; Shotkin v. General Electric Co., 10 Cir., 171 F.2d 236. And we think the judgment is available at least for the limited purpose of establishing that there had been a violation of public rights in the absence of which plaintiffs would have no cause of action under the statute, and from which violation they assert their injury stemmed. Hence we approve the ruling of the District Court— “ * * * all that was intended by Section 16, 15 U.S.'C.A., was that plaintiffs in cases of this nature were to be accorded the advantag-e of establishing a prima facie case of conspiracy to violate the anti-trust laws by merely introducing the judgment of conviction in the criminal case. The nature of the evidence upon which that judgment rests is wholly immaterial and irrelevant. * * * What issues were determined by the judgment of conviction are questions of law to be decided by the court and not issues of fact to be decided by the jury in this case.” While we are convinced that the trial judge announced the proper principles for determining the applicability of .the criminal judgment, we think he did not conform to or correctly follow his own ruling. The error relates principally to the uses to which he permitted plaintiffs to put the in-, dictme'nt in the' criminal proceedings. They attached a copy of it to their complaint; counsel read from it at length in opening statements to the jury, and in closing, referred to the restraints alleged- in it as established by the judgment of conviction; the trial judge summarized it at length in his instructions to the jury; and, most serious of all, the indictment was sent to the jury as an exhibit in the case. Whether or not there was error in the first matters referred to, we are convinced that serious error was committed in permitting the jury to consider the indictment itself as evidence in the case. And that was certainly the effect of its use • as an exhibit. It told the jury that it could look to it to ascertain the means and the acts committed in furtherance of the conspiracy of which defendants had been convicted. But we have shown that since it was unnecessary for the Government to prove the performance- of any of the acts or means, except for the purpose of establishing venue, in order for the jury in the criminal proceeding to find defendants guilty,.it was for the court to examine the indictment as an aid in determining or defining the issues presented by the earlier case, and it should not have been introduced as an item of evidence in the proceeding here involved. And the error of permitting the indictment to be used as evidence was not only not corrected by the instructions but was in fact aggravated by the following ones relating to the evidentiary use of the judgment: “The judgment in the criminal case was admitted in evidence in this case, pursuant to the law to which I have just referred, for the purpose of the plaintiff making a prima facie case against the defendants as to one of the issues of this case and only and solely for the purpose of defining, describing, and limiting the scope of the judgment on the verdict which was entered in that case, namely, the conspiracy to violate the anti-trust laws. “The burden is on the plaintiffs of establishing by a preponderance of the evidence that they were injured by the defendants pursuant to or in the course of a conspiracy and in order to recover damages for the cancellation of the Chevrolet franchises they must prove by a preponderance of the evidence including the criminal judgment that the defendants entered into a conspiracy to compel the use of General Motors Acceptance Corporation by agreeing among themselves, among other things, to cancel dealers who failed or refused to use General Motors Acceptance Corporation to a satisfactory extent and that the franchise of Emich Motors Corporation was cancelled by reason of and pursuant to said conspiracy and not because of the things alleged by defendants as the reasons for such cancellation * * * ” (emphasis added). The first paragraph quoted above appears to us to be needlessly confusing. The second not only permitted the jury to consider the judgment as evidence that there had been a conspiracy, but also allowed it to consider it as evidence that Emich Motors’ franchises were cancelled pursuant to that conspiracy. That the court had previously stated that, “Being prima facie evidence, the judgment is not conclusive in this case. It is merely sufficient evidence of a violation by these defendants of the anti-trust laws to put these defendants to their proof. * * * It was unnecessary that each and every one of the acts charged in the indictment be proved before the jury could find the defendants guilty of the charges made by the indictment; * * * ” does not seem to us to be sufficient to clear up the confusion or rectify the error. Plaintiffs contend that the indictment was properly admitted on the ground that the criminal judgments included it by reference, hence were incomplete without it. We do not so construe the judgments against these defendants. The verdict was "Guilty in manner and form as charged in the indictment,” and each judgment recited a finding of guilt of the offense charged in the indictment," * * * to wit: * * * Violation of Sherman AntiTrust Law.” The scope of such a judgment may better be determined by reference to the instructions of the court to the jury than to the allegations of the indictment. And where, as in the criminal case here relied on, the court expressly told the jury that it need not find the defendants guilty of all the acts and means as charged, such acts and means are not to be considered as established by the finding of guilt. Plaintiffs rely on Eastman Kodak Co. v. Southern Photo Materials Co., 5 Cir., 295 F. 98, 102, as authority for the admissibility of the indictment. There the court admitted, over objections of defendant, the complaint, answer, opinion and final decree in an earlier equity action brought by the Government against the defendant for violations of the anti-trust laws said to be similar to the violations complained of in the suit for damages, with an instruction to the jury that they limit their consideration of the effect of such evidence to the final decree. The Court of Appeals held, without discussion, that the pleadings were admissible to explain the issues upon which the decree was based and that the error in the admission of the opinion was harmless in view of the fact that the court “limited the effect of this evidence to the decree, and of the further fact that the verdict was for much less than could reasonably have been rendered * * .” On review of the decision by the Supreme Court, 273 U.S. 359, at page 369, 47 S.Ct. 400, at page 402, 71 L.Ed. 684, it appears that the objection to the introduction of the pleadings in the earlier case was abandoned— the Court stated that the issues presented did not involve the existence of the monopoly which was not questioned and the allegations as to which had been supported by the final decree in the equity suit, introduced as prima facie evidence of defendants’ violation of the Anti-Trust Act. Plaintiffs also rely on Bigelow v. R.K.O. Radio Pictures, 7 Cir., 162 F.2d 520. In that case, defendants in a supplemental proceeding brought to obtain additional relief after entry of a judgment for damages in a suit for violation of the anti-trust laws, objected to a ruling that estoppel by verdict extended to every issue involved in the prior litigation between the parties. This, however, involved a very different situation from the one here. On appeal, this court observed that the original complaint stated but one cause of action which, if proved, entitled the plaintiffs to two kinds of relief, namely, damages and an injunction. The same judge who presided in the trial of the damage action heard the application for an injunction. The two proceedings involved separate aspects of the same action. Hence, the court, speaking through Judge, now Mr. Justice Minton, approved the use of the complete record in the damage phase of the litigation for .the purpose of enabling the court to determine what had transpired during the trial and appeal of the damage issue. We are convinced that none of these cases are authority for the admission of the indictment for the purposes to which it was put under the circumstances of this case, and further, that permitting it to go to the jury as an exhibit served to give to the allegations of acts and means a certain evidentiary value which, under the instructions of the court in the criminal proceeding, they did not have. We are fortified in our view of the limitation on the use of the indictment by a decision in another case related to the criminal case against defendants here. See Ford Motor Co. v. United States, 335 U.S. 303, 69 S.Ct. 93. At the time of the indictment against the General Motors and other'defendants, similar proceedings were brought against the Ford Motor Company and the Chrysler Company. Both the latter companies entered into consent decrees by which, in effect, they bound themselves not to engage in any practices found illegal by the decree in the General Motors case. By If 12a (2) of the -consent decree it was provided that: “A general verdict of guilty returned against General Motors * * followed by the entry of judgment thereon, shall be deemed to be a determination of the illegality of any agreement, act or practice of General Motors 'Corporation .which is held by the trial court, in its instructions to. the jury to constitute a proper basis for the return' of a general verdict of guilty.” (Emphasis added) Subsequently a question arose as to further continuance of the restraints imposed by the. consent decree in the light of’’ the judgment against General Motors. In discussing' the proper method of 'resolving the question, the Court, 335 U.S. at page 319, 69. S.Ct. at page 101, observed that the Government insisted that since the indictment charged that certain practices .violated the' Sherman Law arid-since 'evidence had been introduced to support the charge, “the'jury might have found' General Motors and GMAC guilty of ‘coercion’ at least partly on the basis of that evidence. But sub-paragraph 12(a) (2)' was not designed to authorize speculative reconstruction of the jury’s process in reaching its verdict. It provided a definite standard for ascertaining what rules of law were at a future date’ to be made binding on a competitor of Ford. The rules which the trial judge formulated against General' Motors we're thereafter to be the rules of law against Ford. * * While obviously this case lays down no rule of law in the case before us, we think the principle is apt in determining the scope of the estoppel here. Section 5 of the Clayton Act is no more designed to' authorize speculative reconstruction of the jury’s process than is the specific provision' of the consent decree. Hence, we think, that case furnishes us a guide that where means and acts are charged in an indictment, even though some evidence may have been introduced as to all, the instructions of the court under which the verdict was reached furnish a more reliable guide to the scope of the judgment rendered thereon than the indictment charging the offense of which the defendants were found guilty. And in view of the instruction in the criminal case that it was not essential to the finding of guilty of conspiracy that every act charged in the indictment be proved, and that the defendants there had a “perfect right 'to have a finance company and to recommend its use” and that “They have a perfect right t'o cancel a -contract from-their dealer 'as long as they aré not performing any unreasonable act” the ruling of the trial' judge in this -case, permitting the jury to consider the indictment as an exhibit -in evidence thus giving it evidenti-ary value, was error, and such error as was very likely to prejudice the jury in its con--sideration of defendants’ defense. - As we have already observed, the defense in this case was that the cancellation of thé two- Emich franchises was for cause, arid not-pursuant to any conspiracy to compel it to use GMAC financing. Defendants-sought to prove that their motive for the’ cancellation was the persistent and repeated acts of fraud and misconduct in the operation of. the dealerships and. the Finance (Company, the result of which; they asserted was to bring Chevrolet into- disrepute. We agree with defendants that the most important issue in this case was their motive in cancelling the Emich franchises.-Certainly before plaintiffs could recover treble damages for the alleged wrongful cancellation they had to establish that such cáncellation was pursuant to a conspiracy to compel the use of GMAC. They were assisted in their proofs by § 5 of the Clayton Act which permitted them to use the criminal judgments as prima facie evidence.' But before they could recover, it was necessary for them to prove the impact of the conspiracy upon themselves. And if defendants could show that they cancelled the dealerships for any other reason than Emich’s failure or refusal to use GMAC, then the cancellations could not be said to be in furtherance of the illegal conspiracy. We recognized in the criminal case, 121 F.2d at pages 400-401 and 406, that it was proper for General Motors to promote manufacturer’s goodwill and to protect itself against inefficient and unscrupulous dealers, and that there were perhaps among its dealers some who were unscrupulous and who used fraudulent finance methods. However, we said that that fact did not justify forcing all dealers to use GMAC because such unscrupulous dealers could be dealt with without penalizing all others. Defendants relied upon this observation of ours and sought to show that Emich was an unscrupulous dealer and that under our decision they were not required to continue to do business with him. And they assert as error the exclusion of so much of their evidence offered to support this defense as to render it wholly ineffective in their presentation of it to the jury. The greater part of the oral evidence offered by plaintiffs to sustain their allegation of wrongful cancellation as a part of the illegal conspiracy was that of sixteen former dealers in General Motors cars, all of whom described similar practices designed to compel their use of GMAC financing — delivery of wrong models, unordered trucks, parts or accessories, withholding of models ordered, threats, and, if they persisted in their refusal to use GMAC, cancellation of their franchises. Plaintiffs contended that all of this dealer evidence demonstrated the impact of the conspiracy upon others in the same situation as Emich Motors. Two former General Motors employees described methods which they stated were regularly used by defendants to bring pressure on dealers to compel the use of GMAC. Emich himself testified that he had taken over his first Chevrolet dealership at the request of General Motors in 1932, and that nothing had been said about the use of GMAC, and that General Motors knew he had been financing his own purchases and sales in connection with another dealership he was then operating. During the same year, he gave up this other dealership, again at the request of General Motors, and accepted a second Chevrolet franchise in its place. Later, as business conditions improved, General Motors began pressing him to use GMAC financing instead of his own, and after he incorporated the Finance Company to handle the finance business he had previously carried on individually, these pressures were increased. They followed the same pattern described by the sixteen other former dealers — threats, withholding of deliveries and wrong deliveries, with promises of relief if he would give GMAC his finance business. Pie said they also demanded that he purchase more equipment for his shop and increase his capitalization. Pie insisted that his capital was sufficient, and he also stated that he and his finance company had financed over two hundred sales without any charge to the customer just to get the orders. Later, he said, attempts were made to obtain voluntary relinquishment of his franchises and when he refused to comply with the demands of General Motors, both his franchises were cancelled. He further testified that he was told on his appeal to Knudsen; the president of General Motors, that he had not been giving them his finance business and that was why he had been cancelled. This latter testimony was corroborated by the testimony of a friend who stated that he accompanied Emich to Detroit and was present at the interview with Knudsen. On cross-examination Emich denied that he had ever been told that a reason for the cancellation of his Chicago store was that he had continued excessive finance packing on new and used cars or that officials had told him of their receipt of customer complaints abouts overcharges and poor service, or that the reason General Motors was complaining was not because he financed his own paper but because he was gypping his customers by his overcharges, and he stated that he had told them that he charged the same rates as other standard nonrecourse companies. It is clear that the question of finance overcharges became one of the most sharply contested issues of the trial. Counsel for plaintiffs stated that “ * * * the finance charges is none of their business and what an independent dealer does with his financing is no concern of theirs,” relying on our decision in the criminal case as authority for the exclusion of any and all evidence relating to financing. Counsel for defendants, on the other hand, asserted, “We do not regard that decision as * * * holding that General Motors, once it grants a license, must permit its dealers to systematically fleece the public by collecting excessive finance charges.” They therefore sought to prove by various means, including evidence of complaints received by General Motors from customers of plaintiffs, that the latter regularly engaged in a practice of overcharging, that knowledge of this practice had come to the attention of defendants, and that it was this knowledge which impelled them to cancel the franchises. The importance of the issue relating to evidence of overcharges is emphasized by a statement of counsel for plaintiffs when the matter of this court’s assertion that General Motors could deal with unscrupulous dealers was under discussion, “You are going to rule us out of court if you make that ruling.” When the question first arose, the trial judge indicated that any complaints as to finance charges or otherwise which came to defendants’ attention were admissible for the purpose of showing dissatisfied customers. Later he modified this to a ruling which he thereafter followed, that finance-complaint witnesses could be asked only whether they had made a complaint to General Motors and, if so, whether it was by letter, telephone call or in person, and whether it was in reference to financing, but without stating that they claimed they were being overcharged, and without introducing the complaint letter, if any. Defendants objected to having their evidence limited in this way since it did not enable them- to establish the extent of the dissatisfaction or whether there was any substantial basis for it. The trial judge further limited the evidence of complaint letters by admitting only those the writers of which were produced as witnesses to identify them. Other offers of proof with respect to financing were entirely excluded on the theory that the evidence offered was immaterial or that it would require a comparison of rates. Thus the trial judge excluded an offer to prove by the evidence of a former employee of Emich, who had been his bookkeeper for a period of two years, that his instructions to her and to his salesmen were that they were to get all the money they could; that one of the items shown with respect to every transaction financed through the Finance Company was known as “overage,” and that this consisted of packing the selling charges over and above the charges shown on the rate chart; and that in all the time this witness was employed by Emich there was never a transaction financed through the Finance Company that did not have the overage, and that the amount was not consistent, but was what ever the salesman had been able to get away with without the customer’s knowing it. The trial judge also excluded defendants’ exhibit 173, a chart prepared for the purpose of showing that the rates charged by the Finance Company for financing new Chevrolet cars at retail were not fixed and bore no definite relationship to the amount to be financed for the term of the instalment financing. The exhibit was also offered to show that the charges actually imposed by the Finance Company on instalment purchases of new Chevrolet cars from Emich Motors amounted to five or six times the charges that would have been applicable had those transactions been financed by nonrecourse companies including a number which were doing business in the Chicago area during the period and all of which had a single standard rate of finance charge. Counsel offered further to call witnesses who would be qualified by testimony that they were certified public accountants who had examined the books of the Finance Company and Emich Motors and prepared the exhibit and that it showed with, respect to every new car sale made by Emich Motors and financed by the Finance Company during the first five months of 1936: (1) Date of sale, (2) customer’s name, (3) the amount of the obligation financed which was the total of (a) the unpaid balance, and (b) the insurance charge. The exhibit further included the finance charges, (1) at standard 6% rate of non-recourse companies and (2) the Finance Company', and (3) the difference between these two, and (4) the “Per cent Which EMC Finance Company Charges are of Charges at Standard 6% Rate.” Plaintiffs assert that Exhibit 173 was properly excluded because it set up a standard which was false on both sides in that it grossly overstated charges of the Finance Company and understated those of the other companies. If this is true it appears that it could fairly easily have been demonstrated by cross-examination of the witnesses who prepared the chart and whom defendants expected to present in support of it. Plaintiffs also object to the lack of qualifications of the witnesses offered, but this also could have been brought out by examination. They say further that the exhibit relates in part to transactions occurring after cancellation of the franchises. An inspection of the exhibit discloses that it presents data as to 141 transactions during the first five months of 1936, and that of those 141, 47 occurred after the cancellation of the franchises. Since, for reasons presently indicated, the fact of lack of knowledge of the data contained in the exhibit was immaterial, this objection does not appear substantial. However, had the exhibit been admitted, it would have been a very simple matter to delete these particular items and either recompute the totals or exclude totals from consideration' — these totals do not appear to have any particular significance. Plaintiffs also claim that there is no showing that Chevrolet had knowledge of the transactions covered by the exhibit. However, evidence offered by defendants, only a part of which was admitted, tended to show that serious irregularities as to plaintiffs’ financing practices had come to their knowledge. This they tried to prove was one of their principal reasons for can-celling the franchises. Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. GLEN-ARDEN COMMODITIES, INC., and Milbank Trading Co., Inc., et al., Petitioners, v. Hon. Mark A. COSTANTINO, U.S.D.J., Respondent. SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. GLEN-ARDEN COMMODITIES, INC., et al., Defendants. SECURITIES AND EXCHANGE COMMISSION, Appellee, v. GLEN-ARDEN COMMODITIES, INC., and Milbank Trading Co., Inc., et al., Appellants. Nos. 817, 818, 1001, Dockets 74-1039, 74-1069, 74-1236. United States Court of Appeals, Second Circuit.. Argued Jan. 23, 1974. Decided March 14, 1974. Bradley R. Brewer, New York City (Brewer & Soeiro, New York City), for appellants. Michael A. Macchiaroli, Securities and Exchange Commission, Washington, D. C. (Walter P. North, Associate Gen. Counsel, Robert E. Kushner, Asst. Gen. Counsel, Washington, D. C., Steven J. Shore, New York City, Atty., New York Regional Office), for appellee. Before HAYS, MANSFIELD and OAKES, Circuit Judges. OAKES, Circuit Judge: The case before us is a consolidation of two appeals and a petition for mandamus. One appeal and the petition relate to certain “temporary restraining orders” entered by the United States District Court for the Eastern District-of New York. The second appeal is from a preliminary injunction entered by the same court on January 18,1974. The orders and injunction below were entered at the behest of the Securities and Exchange Commission in its suit to enjoin Glen-Arden Commodities, Inc., and Milbank Trading Co., Inc., together with certain individual officers and directors of these two closely related companies (the Glen-Arden defendants), from certain acts, practices and courses of conduct allegedly in violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. On the merits, the question presented is essentially whether the Glen-Arden defendants were selling commodities consisting of casks of Scotch whisky, not subject to SEC regulation, or whether they were selling securities within the ambit of § 2(1) of the Securities Act, 15 U.S.C. § 77b (l) On August 23, 1973, the Commission sued the petitioners to enjoin them from conduct in violation of §§ 5(a), 5(c) and 17(a) of the Securities Act of 1933, as amended, 15 U.S.C. §§ 77e(a), 77e(c) and 77q(a), and §§ 10(b), 15(a) and 15(b) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78o(a) and 78o(b), and Rule 10b-5 thereunder, 17' C.F.R. 240.10b-5. At the same time the suit was begun, the Commission served the Glen-Arden defendants with a motion for a preliminary injunction returnable September 21, 1973. After a number of procedural fits and starts, which included an extension of the return date on the preliminary injunction motion, a denial of a Commission request for a temporary restraining order, various postponements of evidentiary hearings and the filing of motions for summary judgment, the Glen-Arden defendants filed a notice of motion seeking to prevent the commencement of an evidentiary hearing pending the convening of a three-judge court to consider whether the term “investment contract” in the statutory definition of the term “security” in the federal securities laws was void for vagueness. 'This motion was filed although this court had ruled in SEC v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1052 (2d Cir.1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1410, 39 L.Ed.2d 469 (1974), that the argument was “untenable.” The district court on November 15, 1973, denied the motion to convene a three-judge panel and from this the defendants filed an application for a stay in the court of appeals. We heard the matter on November 16, 1973, treated the application as one for a writ of mandamus, and denied it from the bench (No. 73-2699). On that same day, the district court began its hearings on the SEC’s motion for a preliminary injunction. At the close of the day’s testimony the SEC again requested a temporary restraining order, and after oral argument the district court granted a temporary restraining order until the next hearing day, a week later. On November 23, 1973, the hearing was continued and considerable testimony was heard from investor witnesses and approximately 40 documents were introduced into evidence, and again after the hearing the SEC requested and the court granted a temporary restraining order, this one “pending determination of the plaintiff Commission’s motion for injunctive relief.” The eviden-tiary hearing continued on November 30, 1973, and on December 5, 1973, the court granted another temporary restraining order pending determination of the SEC’s motion for injunctive relief. On December 10, 11, 17 and 18, 1973, hearings continued, despite the trial judge’s prediction that the case would be disposed of on November 23, and by that time almost 100 exhibits had been introduced and 800 pages of testimony taken. On December 18, after the final day of hearings, the court issued yet another self-styled “Temporary Restraining Order” which was to continue pending determination of the Commission’s motion for injunctive relief. This order, identical to those which preceded it, restrained defendants from, among other things, selling or offering for sale securities in the form of Scotch whisky warehouse receipts or any other securities of any other issuer in violation of the registration and anti-fraud provisions of the Securities Act and the Securities Exchange Act. On January 10, 1974, the defendants filed this petition for mandamus regarding, and a notice of appeal from, the temporary restraining orders of November 23, December 5 and December 18, 1973 (“the orders”). The defendants sought a stay by this court of the orders in effect and a prompt and expedited hearing of the issue presented by the petition and other relief. Thereafter, on January 17, 1974, the district court issued an opinion containing findings of fact and conclusions of law and on January 18, 1974, signed a preliminary injunction restraining defendants from violating the applicable sections of the Acts involved. On January 21, 1974, the Glen-Arden defendants filed a notice of appeal from that preliminary injunction. Thereafter, on oral argument, we granted the motion of the defendants, consented to by the SEC, to consolidate this latter appeal with the appeal and petition for mandamus then before us. We denied, however, a motion by the Glen-Arden defendants to file an additional brief in the latest appeal in light of the delay that this would cause and in light of the fact that the merits were fully briefed on both sides in the papers in the initial appeal. The temporary restraining orders, attacked by the Glen-Arden defendants in the first appeal and the petition for mandamus, by their own terms were effective only “pending determination of the motion for injunctive relief.” This presumably referred to the motion for a preliminary injunction which was before the court. Thus, inasmuch as the court has now rendered its decision on the preliminary injunction, the temporary restraining orders, whether valid or not when entered, have now lapsed and any decision on them would be moot. Accordingly, then, we shall direct our attention to the appeal from 'the preliminary injunction of January 18, taking into account the findings of fact made by the district judge on the basis of the evidence presented. Essentially the facts may be stated as follows. Milbank Trading Co., Inc. (Milbank), is a New York corporation and wholly owned subsidiary of First Credit Bank, Ltd., a Bahamian corporation. Glen-Arden Commodities, Inc. (Glen-Arden), which was known until early 1973 as Mil-bank Trading Co. of Connecticut, Inc., is a Connecticut corporation. Defendant Deeb is the president of Glen-Arden and was an officer of Milbank. Defendant Lamonica was a controlling person of Milbank and Milbank’s Scotch buyer as well as a stockholder and president of Scotch Exchange, Ltd., a Bahamian corporation which supplies Milbank with Scotch whisky. Defendant Weinstein is president of the First Credit Bank, Ltd., and president of Milbank as well as a stockholder and director of Scotch Exchange, Ltd. Defendant Loffman and defendant Losey were sales representatives for Glen-Arden, as is defendant Loeb, who also owns 10 per cent of Glen-Arden’s stock. Defendant Galioto is the vice president and secretary of Milbank. Milbank began in February, 1967, to engage in the offer and sale of Scotch whisky warehouse receipts, which evidence ownership of casks of whisky stored in bonded warehouses in Great Britain. This was done apparently through a number of affiliated corporations including Glen-Arden and its predecessor. Milbank’s sales are effectuated through these affiliates. Mil-bank and Glen-Arden are essentially one in that Milbank supplies Glen-Arden with all its whisky at an agreed price, processes all of Glen-Arden’s paper work, refers customers to Glen-Arden and grants Glen-Arden exclusive sales rights in specified areas. Milbank performs á number of services for Glen-Arden customers including the payment of insurance and warehousing charges. The sales literature of the two companies is closely coordinated and in some cases virtually identical. In Dun & Bradstreet reports Glen-Arden refers to the fact that it is “closely affiliated” with Milbank, and there is evidence that Glen-Arden solicitations explaining the advantages of investment in whisky refer to how Milbank of New York’s customers have realized a profit. As stated, Milbank obtains its inventory through the efforts of its buyer, defendant Lamonica, who purchases all of Milbank’s Scotch from the Bahamian corporation, Scotch Exchange, Ltd. While not perhaps material to the main point at issue, it is obvious that purchases through the related corporations have enabled the defendants substantially to mark up their whisky investments through a series of resales and to allocate a large portion of any total corporate profits to the books of foreign corporations. These Bahamian corporations have also been used to make offers to repurchase whisky from investors, thereby lending credence to the predictions of profit made by the salesmen. The salesmen also have referred to their connections in the Bahamas in that they can sell the investors’ whisky there in order to avoid federal taxes. ■ Glen-Arden conducts its representation through sales representatives whom it trains and pays on a commission basis; it also provides sales literature in the form of mailings and news or other releases. There is no basic dispute for purposes hereof with the findings below that the defendants’ mode of operation was to recruit salesmen familiar with neither the Scotch whisky business nor investment practices and to provide them with a canned sales pitch along with sales literature and direct them to potential customers solicited through mass merchandising techniques such as newspaper advertisements and the indiscriminate use of mailing lists. The specific defendants Deeb, Loffman, Loeb and Losey appeared at various sales meetings during which salesmen were instructed to make certain assertions to induce the customers to invest in Scotch whisky warehouse receipts. These included : 1. Milbank’s expertise would be utilized in selecting the type and quality of Scotch whisky in casks to be purchased; 2. Customers could call Milbank and obtain current information about the Scotch whisky market; 3. Milbank would provide the cooperage of the whisky, that is to say, the storing of it in casks during its maturation period; 4. Milbank would provide two insurance policies to protect the investments; 5. When the customers wished to sell their whisky Milbank would assist them in making a sale without fee or commission; 6. Milbank would handle all administrative details; and 7. Customers could expect a doubling of the value of their investments in three to four years and further increments after that, primarily on the basis that Scotch whisky was a unique investment in that its value enhances merely with age and all of the supply is always sold, whereas in fact the evidence is that the value of Scotch is determined by the basic laws of supply and demand. The documentation supplied to the Glen-Arden investors included an original sales order which set out the quantity of whisky purchased and the price paid for it; a confirmation evidencing the number of barrels of whisky purchased, the amount of whisky contained in each barrel, and the registration number for each barrel; a copy of the warehouse keeper’s records; transfer certificates issued by the distillery confirming transfer and registration of ownership to the purchasing investor; two insurance policies insuring generally against error or fraud by the warehouse keeper; and a form ordering the warehouse keeper to transfer ownership, which form includes the warranty of the signature of the new owner. The evidence showed that investors never contemplated taking actual physical possession of the whisky, but rather they paid a single price, e. g., $2.80 per gallon, with the understanding that Glen-Arden and Mil-bank would do all that was necessary to turn a profit for its investors. There was evidence from customers that they relied upon the expertise of defendants in the management of the investments and were not fully apprised of the risks involved in investments of Scotch, including fluctuations in price or difficulties in resale, particularly of the small quantities involved in terms of the investors’ purchases. The providing of cooperage and insurance and promised assistance in the liquidation of their investments was of the greatest importance to the investors who, according to their testimony, without them would not have purchased the warehouse receipts. There was evidence indicating that defendants and their agents made promises to prospective investors that the whisky purchased would double in value in four, triple in six, and perhaps even quadruple in eight years, but in any event would enhance in value day by day; in this regard, investors were not told that there was a substantial surplus of the production of grain whiskey in the late 1960’s which had severely depressed grain whiskey prices. Moreover, the defendants did not indicate to their customers that they were charging Scotch whisky prices considerably in excess of the prices charged by other brokers; Glen-Arden’s prices in early 1972 were $2.80 per unit as opposed to prices available elsewhere of between $1 and $1.50. According to defendant Deeb’s testimony, 1968 and 1969 investments in Scotch are now worth approximately $2 per unit. There was additional evidence from which it could be found that there were misrepresentations relative to the expertise of the defendants as to market conditions, prices and types and quality of Scotch investments. For example, defendants’ expert advice included a recommendation of the purchase of grain whiskey rather than what they called the “volatile malt.” 'Until recently, however, the defendants have never had experience in selling “volatile malt,” and there is other evidence that investments in malts have produced better returns than investments in grains. Investors were not told that there is no organized Scotch whisky market and that the small investors’ quantities are not interesting to most of the brokers. The Glen-Arden defendants argue here that as a matter of law they were engaged in the'sale of commodities or certificates of. interest therein and, therefore, their activities are not within the regulatory authority of the SEC as found in the Securities Act of 1933 and the Securities Exchange Act of 1934. The point is argued that in 1934 the definition of the term “security” in § 2(1) of the Securities Act, 15 U.S.C. § 77b, was specifically amended, among other ways, to excise the phrase “certificate of interest in property, tangible or intangible,” which had originally been an example of a security. That phrase was removed in the 1934 amendments “as possibly involving too broad and uncertain application.” H.R.Rep.No.1838, 73d Cong., 2d Sess. 39 (1934). The appellants argue that what they were selling were “certificates of interest in [tangible] property” and that neither expressly nor inferentially can the statute, as amended, include either negotiable warehouse receipts or non-negotiable documents of title to specific identified casks, of bonded Scotch whisky in storage such as were sold by the appellants. In addition to its argument based on the legislative history, the appellants seek to have us find that its operation was equivalent to the selling of futures contracts, such as are made in commodities like wheat, soy beans, cocoa, sugar, tobacco, etc., which are not included in the coverage of the Securities Act. See McCurnin v. Kohlmeyer & Co., 340 F.Supp. 1338 (E.D.La.1972); Sinva, Inc. v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 253 F.Supp. 359 (S.D.N.Y.1966). To quote from appellants’ brief (p. 46), Congress “definitely did not intend ... to give the SEC statutory authority to regulate sales of any kind of fungible ‘commodity’ whether it be wheat, soy beans or Scotch whisby stored in barrels somewhere in Scotland and aging in bonded warehouses.” Initially we note that, as we ourselves have been repeatedly enjoined by the Supreme Court, the federal securities laws are to be construed “not technically and restrictively, but flexibly to effectuate [their] remedial purposes.” SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 285, 11 L.Ed.2d 237 (1963). See also Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). The mechanical and pedantic reading of the legislative history suggested to us by appellants would not be within that spirit of flexible construction. The mere fact that the words “certificate of interest in property, tangible or intangible,” were excised from the definition of a security on the basis that they were open to too broad interpretation does not support the notion that all certificates of interest in property were to be excluded from the coverage of the Act. In short, what is determinative is not what is left out of the definition of a security, but rather what is included. The question therefore becomes whether the customers were in fact purchasing simply warehouse receipts, akin to a commodity future, or whether, in light of the economic reality and the totality of circumstances surrounding the sales here, the customers were making an investment, which in view of the appellants’ commitments and representations constituted an “investment contract” within the meaning of § 2(1) of the Securities Act, 15 U.S.C. § 77b(l). The Supreme Court has stated that the test whether a contract constitutes an investment contract within the Securities Act is “what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect.” SEC v. C. M. Joiner Leasing Corp., 320 U.S. 344, 352-353, 64 S.Ct. 120, 124, 88 L.Ed. 88 (1943) [quoted approvingly in SEC v. United Benefit Life Insurance Co., 387 U.S. 202, 211, 87 S.Ct. 1557, 18 L.Ed.2d 673 (1967)]. In Joiner the Court found that, while the definition of “security” in the Securities Act specifically included only fractional undivided interests in oil and gas rights and not specific parcels, the sale of specific parcels there was indeed a security or investment contract under § 2(1) of the Act, 15 U.S.C. § 77b(l). In doing so, the Court through Mr. Justice Jackson went to proof “outside the instrument itself,” 320 U.S. at 355, 64 S. Ct. at 120 to establish the conclusion that the defendants were not offering naked leasehold rights but rather were selling documents which offered the purchaser a chance of sharing in discovery values which might follow a current exploration enterprise. As the Court said, “Had the offer mailed by defendants omitted the economic inducements of the proposed and promised exploration well it would have been a quite different proposition.” 320 U.S. at 348, 64 S.Ct. at 122. It was “an economic interest in this well-drilling undertaking [that] . brought into being the instruments that defendants were selling and gave to the instruments most of their value and all of their lure.” 320 U.S. at 349, 64 S.Ct. at 122. As the Court held, at 351, 64 S.Ct. at 123, the reach of the Act does not stop with the obvious and commonplace. Novel, uncommon, or irregular devices whatever they appear to be, are also reached if it be proved as [a] matter of fact that they were widely offered or dealt in under terms or courses of dealing which establish their character in commerce as “investment contracts,” or as “any interest or instrument commonly known as a security.” Judged by the Joiner test there can be no question but that here the appellants were selling investment contracts. The defendants guaranteed services, they promised results. The economic inducements were in the nature of inducements to invest. The evidence below shows that investors put up their money not so much to secure casks of Scotch whisky but to participate in an enterprise which was virtually guaranteed to “double their money” in four years. It ill behooves appellants, after enticing their customers with fancy brochures touting their investment plan, now to claim there was no investment plan but the mere sale of an unadorned commodity. Even worse, it does violence to the facts. Here the customer, unlike the commodity buyer, while purchasing actual tangible property, was upon the representations of appellants buying in addition services absolutely necessary to the turning of the promised profit. In short, it was a “package deal.” An investor was dependent upon appellants for the utilization of their “expertise in selecting the type and quality of Scotch whisky and casks to be purchased . ,” as found by the lower court. It is not as if they were buying simply X carloads of wheat or barley, a commitment to sell which could be supplied by the furnishing of any other carload of wheat or barley. Rather, the very investment made was in goods to be specifically selected by appellants. Appellants also represented that they.would handle all the necessary arrangements for warehousing the Scotch and insuring it. Finally, and probably most important to the customers, appellants represented that they would find buyers for the Scotch or buy it back themselves. This service, especially in light of the absence of a market for small quantities of Scotch, another distinguishing feature from the commodity analogy, was crucial to any customer’s hope to liquidate his investment. This brings this scheme within the facts of a long line of cases where purported sales of tangible property, service contracts, or both were held to be investment contracts. See, e. g., SEC v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946); Continental Marketing Corp. v. SEC, 387 F.2d 466 (10th Cir.1967), cert denied, 391 U.S. 905, 88 S.Ct. 1655, 20 L.Ed.2d 419 (1968); Blackwell v. Bentsen, 203 F.2d 690 (5th Cir.1953), cert. dismissed, 347 U.S. 925, 74 S.Ct. 528, 98 L.Ed. 1078 (1954); SEC v. Lake Havasu Estates, 340 F. Supp. 1318 (D.Minn.1972); SEC v. Payne, 35 F.Supp. 873 (S.D.N.Y.1940). See also SEC v. Glenn v. Turner Enterprises, Inc., 474 F.2d 476, 481-482 (9th Cir.1973). There have been many other schemes, in short, where the public was led into buying what purported to be tangible items when in fact what was being sold was an investment entrusting the promoters with both the work and the expertise to make the tangible investment pay off This long-term construction placed upon an act of Congress is hardly one that we could disturb even if we wanted to, at this late date. There is ample evidence in the record to justify the trial court’s decision that the SEC had clearly met its burden of showing probable success on the merits and that there was a likelihood of continued violations of the registration and anti-fraud provisions of the securities laws, thereby giving more than sufficient basis for entry of the order of preliminary injunction. Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Co., Inc., 476 F.2d 687, 692-693 (2d Cir.1973); Robert W. Stark, Inc. v. New York Stock Exchange, Inc., 466 F.2d 743, 744 (2d Cir. 1972); SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1100 (2d Cir.1972). Order of preliminary injunction affirmed; petition for writ of mandamus denied; appeal from temporary restraining orders dismissed. . § 77b. Definitions When used in this subchapter, unless the context otherwise requires— (1) The term “security” means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. . We note that while temporary restraining orders are normally not appealable, we would not be bound by the trial court’s characterization or even its conception of the orders. Belknap v. Leary, 427 F.2d 496, 498 (2d Cir. 1970) ; Grant v. United States, 282 F.2d 165, 167-168 (2d Cir. 1960). The distinguishing characteristics of a temporary restraining order under Fed.R.Civ.P. 65(b) are “its availability as an ex parte remedy, and its propensity to self-destruct after twenty days, at the outside.” Morning Telegraph v. Powers, 450 F.2d 97, 99 (2d Cir. 1971). These characteristics are not present here where both sides had ample opportunity to be heard and indeed were heard, and where the orders were extended well beyond 20 days without explanation therefor. See 7 Moore, Federal Practice 65.07, at 65-82. Rather the orders seem more characteristic of preliminary injunctions, which have no specific time limitation and which can be entered only after both sides have been heard. We are not advised, nor do we know, why, in view of the fact that the court was hearing so much testimony and taking so many exhibits, it did not follow the often salutary and time-saving practice of consolidating the application for a preliminary injunction with the hearing on the merits relative to the final injunction, as permitted by Fed.R.Civ.P. 65(a)(2). . Grain whiskey, also known as patent-still, is opposed to pot-still or malt whiskey; the grain whiskey is distilled from a fermented mash of barley malt and other, unmalted cereal grains. While some grain whiskey is sold as single or straight, generally speaking various grain whiskeys are blended with a number of other malt whiskeys for purposes of resale. See generally, 23 Encyclopedia Británica 477 et seq. (1972 ed.). . Tlie 1934 amendments to the Securities Act, as the House Report said, were “intended to apply the Act to interests commonly known as ‘securities’ whether or not such interests are represented by any document or not [sic].” . It may not be enough of an answer to appellants to say, as a connoisseur of Scotch might be tempted to say, that Scotch whis-ky is hardly fungible. We need not simply take judicial notice of the fact that the various Scotch whiskys vary with the type and character of the grain used for mash, with the form of distilling process, whether by pot-still or patent-still methods, with the quality and character of the water used or indeed with the character of fuel used in the kiln drying process, the smoke of which gives Scotch its special flavor. Nor need the appellants’ arguments be answered simply by saying that, far from being fungible, Scotch whisky differs markedly, by brand and distillery, by blend, by year of blend and by age. See generally 23 Encyclopedia Britanica 477 et seq. (1972 ed.). We can suggest, however, that merely by referring to Scotch as fungible appellants seem to belie their own expertise. . For our purposes the definition of “security” in the Securities Exchange Act is “virtually identical.” Tcherepnin v. Knight, 389 U.S. 332, 335-336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). . The Scotch whisky investment game itself is not unknown to the SEC, and courts have uniformly found investment, contracts there involved. In Penfield Co. of California v. SEC, 143 F.2d 746 (9th Cir.), cert. denied, 323 U.S. 768, 65 S.Ct. 121, 89 L.Ed. 614 (1944), the promoters agreed to bottle whiskey represented by warehouse receipts, to sell the bottled whiskey and to pay the contract holders the proceeds less a commission. As the court said, 143 F.2d at 750, the term “investment contract” includes “agreements where ‘the purchasers [look] entirely to the efforts of the promoters to make their investment a profitable one,’ ” quoting Atherton v. United States, 128 F.2d 463, 465 (9th Cir. 1942). This analysis was approved in SEC v. W. J. Howey Co., 328 U.S. 293, 298-299, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946). In Penfield the appellant pointed to its expertise in knowing when whiskey might age and be bottled and pointed to tbe expectations of profit in terms of the whiskey receipt holder receiving double the amount he would by a sale of the hulk whiskey; there, too, the contract holders did not have the facilities to take the whiskey and dispose of it. Even more recent cases involving whiskey where courts found investment contracts include SEC v. Haffenden-Rimar International, Inc., 362 E.Supp. 323 (E.D.Va.1973), appeal pending, where the investors relied solely upon the advice of the defendants in selecting, buying, storing, trading and selling the Scotch represented by their warehouse receipts, and SEC v. M. A. Lundy Associates, 362 F.Supp. 226, 236 et seq. (D.R.I. 1973), where the defendants sold warehouse receipts for casks of malt whiskey under a plan virtually identical to that here. . Appellants’ argument that the district court should not have heard any evidence of fraud is also absurd because in determining whether or not to grant preliminary relief the district court was bound to consider whether or not there was a likelihood of success on the merits. Moreover, many of the facts necessary to demonstrate that the contracts were securities involved the inducements and representations made to engender sales, facts closely related to any claim of fraud. 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_genapel2	H	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Jordan Jay KING and Dorothy King, Plaintiffs-Appellants, v. KANSAS CITY SOUTHERN INDUSTRIES, INC., et al., Defendants-Appellees. Nos. 74-1191, 74-1192. United States Court of Appeals, Seventh Circuit. Argued Jan. 17, 1975. Decided June 19, 1975. Abraham L. Pomerantz, New York City, Harry Schulman, A. Bradley Eben, Lowell E. Sachnoff, Chicago, Ill., for plaintiffs-appellants. Lynne E. McNown, Joan M. Hall, Edward Hatton, Chicago, Ill., Marvin Schwartz, New York City, Arthur Susman, Chicago, Ill., Landon H. Rowland, Kansas City, Mo., for defendants-appellees. Before CLARK, Associate Justice, and PELL and SPRECHER, Circuit Judges. Associate Justice Tom C. Clark of the Supreme Court of the United States (Retired) is sitting by designation. SPRECHER, Circuit Judge. Jordan Jay King and Dorothy King, shareholders in Technology Funds, Inc., appeal orders denying them class action status and approving a settlement of all claims arising from the merger of Supervised Investors Services, Inc. and Kem-perco, Inc. The Kings with Melvin Stol-ler (the Kings) brought this action as representatives of four mutual funds (the Funds); Technology Fund, Inc. (Technology), Balanced Income Fund, Inc. (Balanced), Supervised Investors Summit Fund, Inc. (Summit), and Supervised Investors Growth Fund, Inc. (Growth). Their complaint named as defendants Kansas City Southern Industries, Inc. (KCSI) and the principal shareholders and officers of Supervised Investors Services, Inc. (SIS), John Haw-kinson, Russell Matthias, Courtenay Davis, John Porter, Jr., J. Milburn Smith and Chester Tripp. The Kings claimed defendants violated Sections 15 and 20(a) of the Investment Company Act of 1940, Sections 10(b) and 14(a) of the Securities Exchange Act of 1934, Rule 10b-5 of the rules and regulations of the Securities and Exchange Commission, and their common law fiduciary obligations to the Funds and their shareholders. The plaintiffs sought $18 million in damages and injunctive relief. I The Funds are open-end diversified investment companies registered and regulated under the Investment Company Act of 1940. Virtually all their assets are invested in securities listed and traded on national securities exchanges. By 1971 Summit held securities worth $52 million, Balanced, $14 million, Growth, $197 million, and Technology, $715 million. As is the case with mutual funds, the Funds merely held title to these securities. SIS, the Funds’ creator, principal underwriter and investment advisor, controlled all trading in them. In return for this service SIS received an annual management fee based on the total of the Funds assets. In 1969, SIS’s advisory fees were $3.5 million and their underwriting commission $1.2 million. SIS’s net assets amounted to approximately $1.5 million. Finally, SIS was controlled in turn by KCSI which owned 54 percent of outstanding SIS common stock. During 1969 and 1970 the individual defendants staffed the Funds, SIS and KCSI. John Hawkinson was president and Russell Matthias the secretary-treasurer of all four Funds as well as SIS. Both were directors and shareholders in the Funds and SIS, and Hawkinson was a director of KCSI. Chester Tripp was a director of each of the Funds and a director and stockholder of SIS. Courte-nay Davis, John Porter and Milburn Smith were the remaining directors and shareholders of SIS. On November 6, 1969, SIS entered into a merger agreement with Kemperco. SIS agreed to transfer its business, assets and liabilities to a subsidiary of Kemperco bearing the same name, Supervised Investors Services, Inc. Kem-perco in return agreed to issue to SIS’s shareholders for each share of SIS stock 0.8 shares of Kemperco common stock and 0.2 warrants to purchase Kemperco common stock. During the period the merger agreement was negotiated, Kem-perco stock was trading from a low of $19.50 to a high of $27.50. Since such a merger, however, would by operation of law (15 U.S.C. § 80a— 15(a)(4)) automatically terminate the advisory and underwriting contracts between SIS and the Funds, SIS promised further to recommend to Funds shareholders approval of new advisory and underwriting contracts between the Funds and the new SIS. Clearly, gaining shareholders’ approval was a crucial preliminary to merger. Meetings were called for Balanced and Technology shareholders for January 15 and for Summit and Growth shareholders for February 19, 1970, and proxy materials were mailed to them. In a covering letter Hawkinson, citing the recommendations of the SIS management and the Boards of Directors of the four Funds, urged acceptance of the proposed service contracts. Hawkinson’s signed letter reads in part: With this letter you will find a notice and proxy statement with regard to the annual meeting of shareholders. Before you read the proxy statement, I would like to inform you of a major new development affecting the manager of your fund. Supervised Investors Services, Inc., the Fund’s investment adviser and underwriter, and Kemperco, Inc., a Chicago based insurance and financial services holding company, have jointly announced a proposed merger of Supervised Investors Services, Inc. into Kemperco, Inc. and the operation of Supervised Investors Services, Inc. as a wholly owned subsidiary of Kemper-co, Inc. The proposed merger, which is described in detail in the attached proxy statement, is subject to certain conditions, including approval by the shareholders of the Fund of new investment advisory and underwriting agreements with Supervised Investors Services, Inc. Before going further, I want to emphasize that: 1. The proposed merger does not contemplate any changes in your Fund. Your Fund will not be merged. It will retain its separate identity. 2. The name, investment policies and objectives of your Fund will not be changed. 3. Supervised Investors Services, Inc., as a subsidiary of Kemperco, Inc., will continue to operate as an autonomous corporation; and there will be no changes in its management or personnel. 4. Supervised Investors Services, Inc. will continue to be responsible for investment advice and management of your Fund and the distribution of its shares. The management of Supervised Investors Services, Inc. believes that the proposed merger with Kemperco, Inc. will be beneficia) to it and to the shareholders of the Fund in providing a more complete package of financial services and continuous highly qualified management for the future. The Board of Directors of the Fund approves the continuation of Supervised Investors Services, Inc. as the Fund’s investment adviser, manager and underwriter, and recommends approval of the new contracts described and set forth in the attached proxy statement. Hawkinson did not mention that SIS and the Funds were bound by the proposed merger contract to recommend approval of the new service contracts nor did he indicate the financial advantage he and the other defendants would gain from the merger. The Funds shareholders voted their approval by an overwhelming majority. In May 1970, the merger went through. SIS and Kemperco’s shareholders approved the merger agreement.. On May 22, 1970, the transfers of stock took place and the merger was formally completed. Within two years, six different groups of plaintiffs commenced actions in the Northern District of Illinois challenging the SIS — Kemperco merger. The Kings’ case was one of these and was brought with both shareholder derivative and shareholder class action claims. Four suits were brought as straightforward shareholder derivative actions on behalf of the Funds. Rifken v. KCSI, 71 C 2116 (N.D.Ill., Jan. 14, 1974); Simonson v. Hawkinson, 72 C 12 (N.D.Ill., Jan. 14, 1974); Herman v. SIS, 72 C 14 (N.D.Ill., Jan. 14, 1974); Schwartz v. Hawkinson, 72 C 13 (N.D.Ill., Jan. 14, 1974). Finally, the Funds themselves brought a direct action in the same federal district. Technology v. KCSI, 71 C 2349. All the plaintiffs alleged substantially the same claims. First, they asserted defendants sent Funds shareholders false and misleading proxy statements to secure approval of the SIS-Kemperco merger. They further contended that the new investment advisory and underwriting contracts were thus void. Second, they asserted the SIS-Kemperco merger breached a fiduciary duty owed to the Funds and the Funds shareholders. Arguing that the merger was in reality a sale of fiduciary office, they contended the value of Kemperco stock and warrants transferred in excess of the book value of SIS stock was an unlawful succession fee. Plaintiffs based the first set of claims on the Holding Company Act of 1940, the Securities Exchange Act of 1934 and the rules and regulations of the Securities Exchange Commission. The second set of claims proceeded on a theory of liability recognized by the Second Circuit in Rosenfeld v. Black, 445 F.2d 1337 (2d Cir. 1971). In Rosenfeld an investment advisor to a mutual fund was held personally liable for profiting from the appointment of a new advisor on his recommendation. Unlike the other shareholder plaintiffs, the Kings moved pursuant to Rule 23, Fed.R.Civ.P., for designation of their action as a class action. They claimed to be a true class representing those persons who held stock in the Funds when the new contracts were voted on and approved. Jordan King and Dorothy King jointly held at that time 200 shares of Summit common stock and Melvin Stoller held 200 shares of Technology common stock. The defendants with the Funds opposed the motion, and Funds moved for dismissal of all pending derivative suits. Finding substantial procedural problems with proper definition of the class and notice, the district court denied the Kings class status. King v. Kansas City Southern Industries, 56 F.R.D. 96 (N.D.Ill.1972). The court, however, refusing to dismiss the derivative actions stayed them and allowed the Funds’ direct action alone to proceed. The Kings were not put off for long. On September 11, 1972, they moved to intervene in the Funds’ direct action. The Funds, the Kings contended, would not litigate aggressively since they were controlled by the principal defendants. That same day, the district court granted the Kings in their derivative capacity leave to intervene. One year later all claims against the defendants were settled. After moving a second time for class action status the Kings with the funds and all the defendants, entered into a settlement agreement. The settlement provided that the Funds would receive $1.4 million in satisfaction of all claims asserted directly and derivatively. The Kings expressly reserved waiver of their right to pursue their class action claims on appeal. The district court held a hearing on the proposed settlement and found it “proper, fair, reasonable, just, equitable and adequate.” The court in its final judgment again denied the Kings’ motion for class status. The Kings raised two issues: (1) did the district court abuse its discretion by denying the Kings class status pursuant to Rule 23(a), (b)(1), Fed. R.Civ.P., and (2) did the district court abuse its discretion by approving the proposed settlement agreement? II The Kings contended the Funds shareholders satisfied the requirements for a Rule 23(b)(1) class and should be granted class status. They claimed that their proposed class fully meets the four prerequisites of Rule 23(a). The class of Funds shareholders is numerous, in excess of 175,000; and each class member was misled by the same fraudulent proxy statement. The Kings alleged claims identical to the claims of all other members of the class, and they vigorously pursued them. The Kings also believed the specific requirements of Rule 23(b)(1) were met. Denying direct recovery to the Funds shareholders creates, they believed, the risk of inconsistent adjudications. The defendants and the Funds contended that a class action was inappropriate and useless. They argued that the prejudice arising from varying adjudications was no greater than in any other type of class action inasmuch as a multiplicity of suits, considering the small monetary interest of the class members, was unlikely. They also asserted that the Kings as class representatives would not protect the interests of the class. Finally, they urged that the derivative actions and the Funds’ direct action would accomplish all that the Kings’ class action would accomplish. The district court denied the class action. Faced with three alternative ways to proceed — a class action, a direct action, or a direct action with intervening plaintiffs — the court chose a direct action by the Funds and invited the Kings and the Simonson shareholders to intervene. The court correctly believed that this procedure would further the policies underlying the Rosenfeld claims and avoid the problems relating to notice and to the definition and determination of the appropriate class. Determination of the manageability of class actions is, once Rule 23 is properly applied, a matter for the trial court’s discretion. Rule 23(c)(1) Fed.R. Civ.P.; City of New York v. International Pipe and Ceramics Corp., 410 F.2d 295 (2d Cir. 1969). This is true for all class actions. 3B J. Moore, Federal Practice ¶ 23.50, at 1101 (2d ed. 1974); C. Wright, Law of Federal Courts 314 (2d ed. 1970). The trial court’s determination may be set aside only for abuse. Grand Rapids Furniture Co. v. Grand Rapids F. Co., 127 F.2d 245 (7th Cir. 1942); Weeks v. Bareco Oil Co., 125 F.2d 84 (7th Cir. 1941). In Weeks this court said concerning district court determinations pursuant to Rule 23: We are advised, and accede to the contention, that the District Court has a discretion, and the existence of that discretion narrows the scope of our investigation. ... In most instances, we may say, generally, that the question of discretion is the display of sound judgment. In the proper case it may not be disturbed by an appellate court except for abuse. Id. at 93. The trial court’s discretion, however is limited. Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir. 1972). Rule 23 must be liberally interpreted. 3B J. Moore, Federal Practice ¶ 23.02[4], at 81 (2d ed. 1974), and cases cited in footnotes 1 and 2. Its policy is to favor maintenance of class actions. Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968); Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968). This policy operates just as surely in cases where securities fraud is charged. Green v. Wolf Corporation, 406 F.2d 291 (2d Cir. 1968); Note, Class Action Treatment of Securities Fraud Suits Under the Revised Rule 23. 36 Geo. Wash.L.Rev. 1150 (1968). See also Advisory Committee’s Note to Rule 23, 1966 Amendments, 39 F.R.D. 95, 101, 103 (1966). It is especially strong in instances where denial of class status would effectively terminate further litigation of the securities fraud claims. Ziegler v. Gibralter Life Insurance Company of America, 43 F.R.D. 169 (D.S.D.1967); cf. Hawaii v. Standard Oil Co., 405 U.S. 251, 266, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). However, this is not the case here. The district court’s denial of class status was a proper exercise of its discretion. The court’s reasoning was twofold: (1) a class action would not best further the underlying policies of Rosenfeld, and (2) the procedural difficulties of a class action were serious. The principal aim of a Rosenfeld suit is prophylactic. The district court correctly stated: The basic purpose behind the Rosen-feld holding is to prevent the shareholders and directors of an investment adviser from utilizing their position to extract profits from a buyer which may be conditional on favorable treatment to the successor and to the future detriment of the Funds. . The very existence of the prophylactic rule and its effect of taking away any gain in the sale of the adviser acts as a deterrent against future wrongdoing. King, supra at 99. The court found that the purposes underlying a Rosenfeld claim could be equally well achieved by allowing either the Kings’ class action, the Funds’ direct action or any one of the five derivative suits to proceed. Enforcement brings deterrence. It is unimportant who brings the suit so long as the Rosenfeld claim is vigorously prosecuted. The court’s reasoning is strengthened by a forecast of the possible recoveries under the six different suits. As mutual funds, the Funds principal function is to hold title to the securities which are traded by their investment advisor. These securities comprise for the most part their net assets. The value of each share of Funds stock is directly proportional to the net assets of the Funds, and the value of each share of Funds stock increases as the net assets of the Funds increases. Both the direct action and the derivative suit would gain a corporate recovery thereby increasing the Funds net assets and consequently the value of each share of Funds stock. Thus, the Funds shareholders, including those members of the Kings’ proposed class who still hold Funds stock, would immediately benefit from the recovery and could realize their share of the recovery by redeeming their stock. These stockholders would not derive any advantage from pursuing a class action. The only shareholders denied recovery under a corporate recovery are those who sold their Funds stock prior to the time of recovery. A class action might be maintained in some instances to protect these former shareholders unless it involved the serious procedural difficulties which are present in the Kings’ proposed class action. The Kings’ proposed class does not provide a vehicle of recovery for all individuals possessing a possible Rosenfeld claim. The Kings describe their class as follows: Plaintiffs, in the alternative, brings this Count as a class action pursuant to Rule 23(b)(1)(A) and (B) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all other stockholders and former stockholders of all four of the Funds, namely of Summit, of Balanced, of Growth and of Technology, similarly situated, namely, all of those persons (other than defendants and those in privity witli them) who held stock in any one of the four Funds on the record date, in or about December of 1969 for the annual meeting of stockholders of the Fund held in January or February of 1970 at which approval of the new advisory contracts between Manager and the Fund was obtained. Fourth Amended Complaint, Count V, ¶65. The Kings claimed to represent the group of shareholders who approved the merger. In fact, the Rosenfeld claims arose several months later at the consummation of the SIS — Kemperco merger. To determine the class as the Kings propose would include individuals who would benefit from the corporate recovery and exclude those who could assert a Rosenfeld claim but would not benefit from the Funds action. First, there are individuals who held stock on the record date and did not redeem it before judgment was entered in the Funds action. As the Kings’ class is drawn these individuals would recover both on the Funds action and on the class action. Also, with the high rate of turnover among Funds shareholders, there are those individuals who held Funds stock on the record date but sold it before the merger. As members of the Kings’ class, these individuals would recover even though they were not members of the group wronged. Lastly, the Kings’ class would exclude those shareholders who purchased Funds stock after the record date and sold it before the Funds’ recovery. Under any class action on a Rosen-feld claim, these individuals must recover. See Rosenfeld v. Black, 336 F.Supp. 84, 91 (S.D.N.Y.1972). It would be a mammoth task to sort out those Funds shareholders possessing a Rosenfeld claim, for over 175,000 individuals held Funds stock on the record date. The trial court correctly chose to permit the Funds direct action. It was a practical decision within its discretion. The Funds action was easier to manage. In other instances a class action, either by itself or as a complement to a direct or derivative action, might be proper. This would be true where there are sufficient facts to support a Rosenfeld claim and in the judgment of the district court a class action is the most efficient or perhaps the only way to pursue it. The most serious shortcoming of the Funds direct action was the defendants’ dominance of the Funds. The trial court, however, by allowing the Kings and Si-monson to intervene, insured an adversary proceeding. Ill The Kings contend the district court abused its discretion when it approved the proposed $1.4 million settlement sum. SIS shareholders allegedly received for their stock, having a book value of $1.5 million, $19 million of Kemperco securities. Thus, the succession fee appears to be in excess of $17 million, an immense figure when compared with the meager settlement offer. The defendants contend that the Kings are estopped from challenging the settlement. The Kings, they argue, agreed to the reasonableness of the settlement terms reserving only the right to attack the corporate recovery and assert a class recovery. The Kings are estopped from challenging the settlement. It is apparent from the record that the Kings consented to the terms of the settlement. The Kings with Simonson were a party to the settlement negotiations and aggressively pushed for the $1.4 million recovery. In a hearing before the district court, the Kings agreed that the proposed settlement of their derivative claims was reasonable. Furthermore, in a letter to the district judge dated September 6, 1973 they said: [W]e had no present objection to the amount of the proposed $1,400,000 settlement. However, [we] fully intend to pursue [our] position that any recovery in the case should be for the class of persons injured and not a corporate recovery for the funds. Finally, the stipulation of settlement submitted to the district court bears the Kings’ signature. They only reserved waiver of their “rights to pursue the King class action.” Tr. Vol. III, No. 131 at 13. All other claims they gave up. Since the district court properly denied the Kings class action status, the Kings are estopped from challenging their settlement stipulation. Accordingly, we affirm the judgment of the district court approving the stipulated settlement and denying the Kings class status. Affirmed. . 15 U.S.C. § 80a-15. . 15 U.S.C. § 80a-20(a). . 15 U.S.C. § 78j(b). . 15 U.S.C. § 78n(a). . 17 C.F.R. 240.10b-5. . Open-end diversified company is defined at 15 U.S.C. § 80a-5 which provides in part: (a) For the purposes of this subchapter, management companies are divided into open-end and closed-end companies, defined as follows: (1) “Open-end company” means a management company which is offering for sale or has outstanding any redeemable security of which it is the issuer. ****** (b) Management companies are further divided into diversified companies and non-diversified companies, defined as follows: (1) “Diversified company” means a management company which meets the following requirements: At least 75 per centum of the value of its total assets is represented by cash and cash items (including receivables), Government securities, securities of other investment companies, and other securities for the purposes of this calculation limited in respect of any one issuer to an amount not greater in value than 5 per centum of the value of the total assets of such management company and to not more than 10 per centum of the outstanding voting securities of such issuer. . The Kings appealed the trial court’s order denying them class status but their appeal was dismissed because such an order was interlocutory and not appealable under 28 U.S.C. § 1291. King v. Kansas City Southern Industries, Inc., 479 F.2d 1259 (7th Cir. 1973). . Technology Fund, Inc. v. Kansas City Southern Industries, Inc., No. 71 C 2349 (N.D.Ill., Jan. 14, 1974). . Rule 23(a), Fed.R.Civ.P., provides in full: (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. . Rule 23(b)(1), Fed.R.Civ.P., provides in full: (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests . Rule 23(c)(1), Fed.R.Civ.P., provides in full: As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. UNITED STATES of America, Appellee, v. Ewald Percival VAN WEST, Defendant, Appellant. No. 71-1228. United States Court of Appeals, First Circuit. Heard Feb. 3, 1972. Decided Feb. 18, 1972. Robert J. Griswold, San Juan, P. R., for defendant-appellant. Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. PER CURIAM. Defendant was convicted of assaulting an officer of the Bureau of Customs while engaged in the performance of his official duties, a violation of 18 U.S.C. § 111. Defendant, the pilot of a small twin-engined aircraft, was watching a customs officer search his airplane after its arrival at San Juan, Puerto Rico, from the Virgin Islands. He became agitated when the officer insisted upon inspecting a lunch sack, grabbed the sack, called the officer names and hit him in the face with a spray can. A complaint was filed in the district court charging defendant with violation of section 111, but thereafter he was indicted on a one-count indictment which did not mention section 111, but listed, instead, sections 113 and 1114. Section 1114 is used, in part, to designate officials the assaulting of whom is made a federal crime by section 111. See note, ante. It has no connection with section 113. Correspondingly, the body of the indictment was appropriate to section 111, and unrelated to section 113. At the conclusion of the government’s case defendant moved for acquittal, claiming that the government had not proved maritime or territorial jurisdiction as required by section 113. The court determined that the use of section 113 in the indictment’s caption was a technical error, and ordered it changed to section 111. The trial then continued. Defendant was convicted, and he appeals. We find defendant’s position lacking in merit. Under F.R.Crim.P. 7(c) the miscitation of a statute is not material if “the error . . . did not mislead the defendant to his prejudice.” See Gaunt v. United States, 1 Cir., 1950, 184 F.2d 284, 289, cert. denied 340 U.S. 917, 71 S.Ct. 350, 95 L.Ed. 662; United States v. Cook, 3 Cir., 1969, 412 F.2d 293, cert. denied 396 U.S. 969, 90 S.Ct. 451, 24 L.Ed.2d 434. See also Russell v. United States, 1962, 369 U.S. 749, 760-763, 82 S.Ct. 1038, 8 L.Ed.2d 240. Defendant here could not have been misled by the erroneous citation of section 113. Not only was it apparent on the face of the indictment that the reference to section 113 was erroneous, but from defendant’s counsel’s examination of the government witnesses it is clear that he was concerned with the specific allegations of the indictment, which set forth a case precisely within section 111. Defendant’s claim that he was misled by the penalty provision, which under section 111 is larger than under section 113, might be relevant if he had pleaded guilty, but it is meaningless when he went to trial. Defendant knew that he was being tried for the assault of a federal officer in the performance of his official duties. That was enough. Affirmed. “Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.” Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_issue_8	01	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. UNITED STATES v. E. I. du PONT de NEMOURS & CO. No. 5. Argued October 11, 1955. Decided June 11, 1956. Charles H. Weston argued the cause for the United States. With him on the brief were Solicitor General SobelojJ, Assistant Attorney General Barnes, Ralph S. Spritzer and William J. Lamont. Gerhard A. Gesell argued the cause for appellee. With him on the brief were James H. McGlothlin, Burke Marshall, Hugh M. Morris and Frank J. Zugehoer. Mr. Justice Reed delivered the opinion of the Court. The United States brought this civil action under § 4 of the Sherman Act against E. I. du Pont de Nemours and Company. The complaint, filed December 13, 1947, in the United States District Court for the District of Columbia, charged du Pont with monopolizing, attempting to monopolize and conspiracy to monopolize interstate commerce in cellophane and eellulosic caps and bands in violation of § 2 of the Sherman Act. Relief by injunction was sought against defendant and its officers, forbidding monopolizing or attempting to monopolize interstate trade in cellophane. The prayer also sought action to dissipate the effect of the monopolization by divestiture or other steps. On defendant’s motion under 28 U. S. C. § 1404 (a), the case was transferred to the District of Delaware. After a lengthy trial, judgment was entered for du Pont on all issues. The Government’s direct appeal here does not contest the findings that relate to caps and bands, nor does it raise any issue concerning the alleged attempt to monopolize or conspiracy to monopolize interstate commerce in cellophane. The appeal, as specifically stated by the Government, “attacks only the ruling that du Pont has not monopolized trade in cellophane.” At issue for determination is only this alleged violation by du Pont of § 2 of the Sherman Act. During the period that is relevant to this action, du Pont produced almost 75% of the cellophane sold in the United States, and cellophane constituted less than 20% of all “flexible packaging material” sales. This was the designation accepted at the trial for the materials listed in Finding 280, Appendix A, this opinion, post, p. 405. The Government contends that, by so dominating cellophane production, du Pont monopolized a “part of the trade or commerce” in violation of § 2. Respondent agrees that cellophane is a product which constitutes “a ‘part’ of commerce within the meaning of Section 2.” Du Pont brief, pp. 16, 79. But it contends that the prohibition of § 2 against monopolization is not violated because it does not have the power to control the price of cellophane or to exclude competitors from the market in which cellophane is sold. The court below found that the “relevant market for determining the extent of du Pont’s market control is the market for flexible packaging materials,” and that competition from those other materials prevented du Pont from possessing monopoly powers in its sales of cellophane. Finding 37. The Government asserts that cellophane and other wrapping materials are neither substantially fungible nor like priced. For these reasons, it argues that the market for other wrappings is distinct from the market for cellophane and that the competition afforded cellophane by other wrappings is not strong enough to be considered in determining whether du Pont has monopoly powers. Market delimitation is necessary under du Pont’s theory to determine whether an alleged monopolist violates § 2. The ultimate consideration in such a determination is whether the defendants control the price and competition in the market for such part of trade or commerce as they are charged with monopolizing. Every manufacturer is the sole producer of the particular commodity it makes but its control in the above sense of the relevant market depends upon the availability of alternative commodities for buyers: i. e., whether there is a cross-elasticity of demand between cellophane and the other wrappings. This interchangeability is largely gauged by the purchase of competing products for similar uses considering the price, characteristics and adaptability of the competing commodities. The court below found that the flexible wrappings afforded such alternatives. This Court must determine whether the trial court erred in its estimate of the competition afforded cellophane by other materials. The burden of proof, of course, was upon the Government to establish monopoly. See United States v. Aluminum Co. of America, 148 F. 2d 416, 423, 427. This the trial court held the Government failed to do, upon findings of fact and law stated at length by that court. For the United States to succeed in this Court now, it must show that erroneous legal tests were applied to essential findings of fact or that the findings themselves were “clearly erroneous” within our rulings on Rule 52 (a) of the Rules of Civil Procedure. See United States v. United States Gypsum Co., 333 U. S. 364, 393-395. We do not try the facts of cases de novo. Timken Roller Bearing Co. v. United States, 341 U. S. 593, 597. Two additional questions were raised in the record and decided by the court below. That court found that, even if du Pont did possess monopoly power over sales of cellophane, it was not subject to Sherman Act prosecution, because (1) the acquisition of that power was protected by patents, and (2) that power was acquired solely through du Pont’s business expertness. It was thrust upon du Pont. 118 F. Supp., at 213-218. Since the Government specifically excludes attempts and conspiracies to monopolize from consideration, a conclusion that du Pont has no monopoly power would obviate examination of these last two issues. I. Factual Background. — For consideration of the issue as to monopolization, a general summary of the development of cellophane is useful. In the early 1900’s, Jacques Brandenberger, a Swiss chemist, attempted to make tablecloths impervious to dirt by spraying them with liquid viscose (a cellulose solution available in quantity from wood pulp, Finding 361) and by coagulating this coating. His idea failed, but he noted that the coating peeled off in a transparent film. This first “cellophane” was thick, hard, and not perfectly transparent, but Brandenberger apparently foresaw commercial possibilities in his discovery. By 1908 he developed the first machine for the manufacture of transparent sheets of regenerated cellulose. The 1908 product was not satisfactory, but by 1912 Brandenberger was making a saleable thin flexible film used in gas masks. He obtained patents to cover the machinery and the essential ideas of his process. It seems to be agreed, however, that the disclosures of these early patents were not sufficient to make possible the manufacture of commercial cellophane. The inadequacy of the patents is partially attributed to the fact that the essential machine (the Hopper) was improved after it was patented. But more significant was the failure of these patents to disclose the actual technique of the process. This technique included the operational data acquired by experimentation. In 1917 Brandenberger assigned his patents to La Cellophane Societe Anonyme and joined that organization. Thereafter developments in the production of cellophane somewhat paralleled those taking place in artificial textiles. Chemical science furnished the knowledge for perfecting the new products. The success of the artificial products has been enormous. Du Pont was an American leader in the field of synthetics and learned of cellophane’s successes through an associate, Comptoir des Textiles Artificiel. In 1923 du Pont organized with La Cellophane an American company for the manufacture of plain cellophane. The undisputed findings are that: “On December 26, 1923, an agreement was executed between duPont Cellophane Company and La Cellophane by which La Cellophane licensed duPont Cellophane Company exclusively under its United States cellophane patents, and granted duPont Cellophane Company the exclusive right to make and sell in North and Central America under La Cellophane’s secret processes for cellophane manufacture. DuPont Cellophane Company granted to La Cellophane exclusive rights for the rest of the world under any cellophane patents or processes duPont Cellophane Company might develop.” Finding 24. Subsequently du Pont and La Cellophane licensed several foreign companies, allowing them to manufacture and vend cellophane in limited areas. Finding 601. Technical exchange agreements with these companies were entered into at the same time. However, in 1940, du Pont notified these foreign companies that sales might be made in any country, and- by 1948 all the technical exchange agreements were canceled. Sylvania, an American affiliate of a Belgian producer of cellophane not covered by the license agreements above referred to, began the manufacture of cellophane in the United States in 1930. Litigation between the French and Belgian companies resulted in a settlement whereby La Cellophane came to have a stock interest in Sylvania, contrary to the La Cellophane-du Pont agreement. This resulted in adjustments as compensation for the intrusion into United States of La Cellophane that extended du Pont’s limited territory. The details do not here seem important. Since 1934 Sylvania has produced about 25% of United States cellophane. An important factor in the growth of cellophane production and sales was the perfection of moistureproof cellophane, a superior 'product of du Pont research and patented by that company through a 1927 application. Plain cellophane has little resistance to the passage of moisture vapor. Moistureproof cellophane has a composition added which keeps moisture in and out of the packed commodity. This patented type of cellophane has had a demand with much more rapid growth than the plain. In 1931 Sylvania began the manufacture of moisture-proof cellophane under its own patents. After negotiations over patent rights, du Pont in 1933 licensed Sylvania to manufacture and sell moistureproof cellophane produced under the du Pont patents at a royalty of 2% of sales. These licenses, with the plain cellophane licenses from the Belgian company, made Sylvania a full cellophane competitor, limited on moistureproof sales by the terms of the licenses to 20% of the combined sales of the two companies of that type by the payment of a prohibitive royalty on the excess. Finding 552. There was never an excess production. The limiting clause was dropped on January 1, 1945, and Sylvania was acquired in 1946 by the American Viscose Corporation with assets of over two hundred million dollars. Between 1928 and 1950, du Pont’s sales of plain cellophane increased from $3,131,608 to $9,330,776. Mois-tureproof sales increased from $603,222 to $89,850,416, although prices were continuously reduced. Finding 337. It could not be said that this immense increase in use was solely or even largely attributable to the superior quality of cellophane or to the technique or business acumen of du Pont, though doubtless those factors were important. The growth was a part of the expansion of the commodity-packaging habits of business, a by-product of general efficient competitive merchandising to meet modern demands. The profits, which were large, apparently arose from this trend in marketing, the development of the industrial use of chemical research and production of synthetics, rather than from elimination of other producers from the relevant market. That market is discussed later at p. 394. Tables appearing at the end of this opinion (Appendix A, Findings 279-292, inclusive, post, pp. 405-410) show the uses of cellophane in comparison with other wrappings. See the discussion, infra, p. 399 et seq. II. The Sherman Act and the Courts. — The Sherman Act has received long and careful application by this Court to achieve for the Nation the freedom of enterprise from monopoly or restraint envisaged by the Congress that passed the Act in 1890. Because the Act is couched in broad terms, it is adaptable to the changing types of commercial production and distribution that have evolved since its passage. Chief Justice Hughes wrote for the Court that “As a charter of freedom, the Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions.” Appalachian Coals, Inc. v. United States, 288 U. S. 344, 359-360. Compare on remedy, Judge Wyzanski in United States v. United Shoe Machinery Corp., 110 F. Supp. 295, 348. It was said in Standard Oil Co. v. United States, 221 U. S. 1, 50, that fear of the power of rapid accumulations of individual and corporate wealth from the trade and industry of a developing national economy caused its passage. Units of traders and producers snowballed by combining into so-called “trusts.” Competition was threatened. Control of prices was feared. Individual initiative was dampened. While the economic picture has changed, large aggregations of private capital, with power attributes, continue. Mergers go forward. Industries such as steel, automobiles, tires, chemicals, have only a few production organizations. A considerable size is often essential for efficient operation in research, manufacture and distribution. Judicial construction of antitrust legislation has generally been left unchanged by Congress. This is true of the Rule of Reason. While it is fair to say that the Rule is imprecise, its application in Sherman Act litigation, as directed against enhancement of price or throttling of competition, has given a workable content to antitrust legislation. See note 18, injra. It was judicially declared a proper interpretation of the Sherman Act in 1911, with a strong, clear-cut dissent challenging its soundness on the ground that the specific words of the Act covered every contract that tended to restrain or monopolize. This Court has not receded from its position on the Rule. There is not, we think, any inconsistency between it and the development of the judicial theory that agreements as to maintenance of prices or division of territory are in themselves a violation of the Sherman Act. It is logical that some agreements and practices are invalid per se, while others are illegal only as applied to particular situations. Difficulties of interpretation have arisen in the application of the Sherman Act in view of the technical changes in production of commodities and the new distribution practices. They have called forth reappraisal of the effect of the Act by business and government. That reappraisal has so far left the problems with which we are here concerned to the courts rather than to administrative agencies. Cf. Federal Trade Commission Act, 38 Stat. 721. It is true that Congress has made exceptions to the generality of monopoly prohibitions, exceptions that spring from the necessities or conveniences of certain industries or business organizations, or from the characteristics of the members of certain groups of citizens. But those exceptions express legislative determination of the national economy’s need of reasonable limitations on cutthroat competition or prohibition of monopoly. “[WJhere exceptions are made, Congress should make them.” United States v. Line Material Co., 333 U. S. 287, 310. They modify the reach of the Sherman Act but do not change its prohibition of other monopolies. We therefore turn to § 2 (note 2, supra) to determine whether du Pont has violated that section by its dominance in the manufacture of cellophane in the before-stated circumstances. III. The Sherman Act, § 2 — Monopolization. — The only statutory language of § 2 pertinent on this review is: “Every person who shall monopolize . . . shall be deemed guilty . . . .” This Court has pointed out that monopoly at common law was a grant by the sovereign to any person for the sole making or handling of anything so that others were restrained or hindered in their lawful trade. Standard Oil Co. v. United States, 221 U. S. 1, 51. However, as in England, it came to be recognized here that acts bringing the evils of authorized monopoly— unduly diminishing competition and enhancing prices— were undesirable (id., at 56, 57, 58) and were declared illegal by § 2. Id., at 60-62. Our cases determine that a party has monopoly power if it has, over “any part of the trade or commerce among the several States,” a power of controlling prices or unreasonably restricting competition. Id., at 58. Senator Hoar, in discussing § 2, pointed out that monopoly involved something more than extraordinary commercial success, “that it involved something like the use of means which made it impossible for other persons to engage in fair competition.” This exception to the Sherman Act prohibitions of monopoly power is perhaps the monopoly “thrust upon” one of United States v. Aluminum Co. of America, 148 F. 2d 416, 429, left as an undecided possibility by American Tobacco Co. v. United States, 328 U. S. 781. Compare United States v. United Shoe Machinery Corp., 110 F. Supp. 295, 342. If cellophane is the “market” that du Pont is found to dominate, it may be assumed it does have monopoly power over that “market.” Monopoly power is the power to control prices or exclude competition. It seems apparent that du Pont’s power to set the price of cellophane has been limited only by the competition afforded by other flexible packaging materials. Moreover, it may be practically impossible for anyone to commence manufacturing cellophane without full access to du Pont’s technique. However, du Pont has no power to prevent competition from other wrapping materials. The trial court consequently had to determine whether competition from the other wrappings prevented du Pont from possessing monopoly power in violation of § 2. Price and competition are so intimately entwined that any discussion of theory must treat them as one. It is inconceivable that price could be controlled without power over competition or vice versa. This approach to the determination of monopoly power is strengthened by this Court’s conclusion in prior cases that, when an alleged monopolist has power over price and competition, an intention to monopolize in a proper case may be assumed. If a large number of buyers and sellers deal freely in a standardized product, such as salt or wheat, we have complete or pure competition. Patents, on the other hand, furnish the most familiar type of classic monopoly. As the producers of a standardized product bring about significant differentiations of quality, design, or packaging in the product that permit differences of use, competition becomes to a greater or less degree incomplete and the producer’s power over price and competition greater over his article and its use, according to the differentiation he is able to create and maintain. A retail seller may have in one sense a monopoly on certain trade because of location, as an isolated country store or filling station, or because no one else makes a product of just the quality or attractiveness of his product, as for example in cigarettes. Thus one can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product. However, this power that, let us say, automobile or soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product. Determination of the competitive market for commodities depends on how different from one another are the offered commodities in character or use, how far buyers will go to substitute one commodity for another. For example, one can think of building materials as in commodity competition but one could hardly say that brick competed with steel or wood or cement or stone in the meaning of Sherman Act litigation; the products are too different. This is the interindustry competition emphasized by some economists. See Lilienthal, Big Business, c. 5. On the other hand, there are certain differences in the formulae for soft drinks but one can hardly say that each one is an illegal monopoly. Whatever the market may be, we hold that control of price or competition establishes the existence of monopoly power under § 2. Section 2 requires the application of a reasonable approach in determining the existence of monopoly power just as surely as did § 1. This of course does not mean that there can be a reasonable monopoly. See notes 7 and 9, supra. Our next step is to determine whether du Pont has monopoly power over cellophane: that is, power over its price in relation to or competition with other commodities. The charge was monopolization of cellophane. The defense, that cellophane was merely a part of the relevant market for flexible packaging materials. IV. The Relevant Market. — When a product is controlled by one interest, without substitutes available in the market, there is monopoly power. Because most products have possible substitutes, we cannot, as we said in Times-Picayune Co. v. United States, 345 U. S. 594, 612, give “that infinite range” to the definition of substitutes. Nor is it a proper interpretation of the Sherman Act to require that products be fungible to be considered in the relevant market. The Government argues: “We do not here urge that in no circumstances may competition of substitutes negative possession of monopolistic power over trade in a product. The decisions make it clear at the least that the courts will not consider substitutes other than those which are substantially fungible with the monopolized product and sell at substantially the same price.” But where there are market alternatives that, buyers may readily use for their purposes, illegal monopoly does not exist merely because the product said to be monopolized differs from others. If it were not so, only physically identical products would be a part of the market. To accept the Government’s argument, we would have to conclude that the manufacturers of plain as well as mois-tureproof cellophane were monopolists, and so with films such as Pliofilm, foil, glassine, polyethylene, and Saran, for each of these wrapping materials is distinguishable. These were all exhibits in the case. New wrappings appear, generally similar to cellophane: is each a monopoly? What is called for is an appraisal of the “cross-elasticity” of demand in the trade. See Note, 54 Col. L. Rev. 580. The varying circumstances of each case determine the result. In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodities reasonably interchangeable by consumers for the same purposes make up that “part of the trade or commerce,” monopolization of which may be illegal. As respects flexible packaging materials, the market geographically is nationwide. Industrial activities cannot be confined to trim categories. Illegal monopolies under § 2 may well exist over limited products in narrow fields where competition is eliminated. That does not settle the issue here. In determining the market under the Sherman Act, it is the use or uses to which the commodity is put that control. The selling price between commodities with similar uses and different characteristics may vary, so that the cheaper product can drive out the more expensive. Or, the superior quality of higher priced articles may make dominant the more desirable. Cellophane costs more than many competing products and less than a few. But whatever the price, there are various flexible wrapping materials that are bought by manufacturers for packaging their goods in their own plants or are sold to converters who shape and print them for use in the packaging of the commodities to be wrapped. Cellophane differs from other flexible packaging materials. From some it differs more than from others. The basic materials from which the wrappings are made and the advantages and disadvantages of the products to the packaging industry are summarized in Findings 62 and 63. They are aluminum, cellulose acetate, chlorides, wood pulp, rubber hydrochloride, and ethylene gas. It will adequately illustrate the similarity in characteristics of the various products by noting here Finding 62 as to glassine. Its use is almost as extensive as cellophane, Appendix C, post, p. 412, and many of its characteristics equally or more satisfactory to users. It may be admitted that cellophane combines the desirable elements of transparency, strength and cheapness more definitely than any of the others. Comparative characteristics have been noted thus: “Moistureproof cellophane is highly transparent, tears readily but has high bursting strength, is highly impervious to moisture and gases, and is resistant to grease and oils. Heat sealable, printable, and adapted to use on wrapping machines, it makes an excellent packaging material for both display and protection of commodities. “Other flexible wrapping materials fall into four major categories: (1) opaque nonmoistureproof wrapping paper designed primarily for convenience and protection in handling packages; (2) moisture-proof films of varying degrees of transparency designed primarily either to protect, or to display and protect, the products they encompass; (3) non-moistureproof transparent films designed primarily to display and to some extent protect, but which obviously do a poor protecting job where exclusion or retention of moisture is important; and (4) mois-tureproof materials other than films of varying degrees of transparency (foils and paper products) designed to protect and display.” An examination of Finding 59, Appendix B, post, p. 411, will make this clear. But, despite cellophane’s advantages, it has to meet competition from other materials in every one of its uses. Cellophane’s principal uses are analyzed in Appendix A, Findings 281 and 282. Food products are the chief outlet, with cigarettes next. The Government makes no challenge to Finding 283 that cellophane furnishes less than 7% of wrappings for bakery products, 25% for candy, 32% for snacks, 35% for meats and poultry, 27% for crackers and biscuits, 47% for fresh produce, and 34% for frozen foods. Seventy-five to eighty percent of cigarettes are wrapped in cellophane. Finding 292. Thus, cellophane shares the packaging market with others. The over-all result is that cellophane accounts for 17.9% of flexible wrapping materials, measured by the wrapping surface. Finding 280, Appendix A, post, p. 405. Moreover a very considerable degree of functional interchangeability exists between these products, as is shown by the tables of Appendix A and Findings 150-278. It will be noted, Appendix B, that except as to permeability to gases, cellophane has no qualities that are not possessed by a number of other materials. Meat will do as an example of interchangeability. Findings 205-220. Although du Pont’s sales to the meat industry have reached 19,000,000 pounds annually, nearly 35%, this volume is attributed “to the rise of self-service retailing of fresh meat.” Findings 212 and 283. In fact, since the popularity of self-service meats, du Pont has lost “a considerable proportion” of this packaging business to Pliofilm. Finding 215. Pliofilm is more expensive than cellophane, but its superior physical characteristics apparently offset cellophane’s price advantage. While retailers shift continually between the two, the trial court found that Pliofilm is increasing its share of the business. Finding 216. One further example is worth noting. Before World War II, du Pont cellophane wrapped between 5 and 10% of baked and smoked meats. The peak year was 1933. Finding 209. Thereafter du Pont was unable to meet the competition of Sylvania and of greaseproof paper. Its sales declined and the 1933 volume was not reached again until 1947. Findings 209-210. It will be noted that greaseproof paper, glassine, waxed paper, foil and Pliofilm are used as well as cellophane, Finding 218. Findings 209-210 show the competition and 215-216 the advantages that have caused the more expensive Pliofilm to increase its proportion of the business. An element for consideration as to cross-elasticity of demand between products is the responsiveness of the sales of one product to price changes of the other. If a slight decrease in the price of cellophane causes a considerable number of customers of other flexible wrappings to switch to cellophane, it would be an indication that a high cross-elasticity of demand exists between them; that the products compete in the same market. The court below held that the “[gjreat sensitivity of customers in the flexible packaging markets to price or quality changes” prevented du Pont from possessing monopoly control over price. 118 F. Supp., at 207. The record sustains these findings. See references made by the trial court in Findings 123-149. We conclude that cellophane’s interchangeability with the other materials mentioned suffices to make it a part of this flexible packaging material market. The Government stresses the fact that the variation in price between cellophane and other materials demonstrates they are noncompetitive. As these products are all flexible wrapping materials, it seems reasonable to consider, as was done at the trial, their comparative cost to the consumer in terms of square area. This can be seen in Finding 130, Appendix C. Findings as to price competition are set out in the margin. Cellophane costs two or three times as much, surface measure, as its chief competitors for the flexible wrapping market, glassine and greaseproof papers. Other forms of cellulose wrappings and those from other chemical or mineral substances, with the exception of aluminum foil, are more expensive. The uses of these materials, as can be observed by Finding 283 in Appendix A, are largely to wrap small packages for retail distribution. The wrapping is a relatively small proportion of the entire cost of the article. Different producers need different qualities in wrappings and their need may vary from time to time as their products undergo change. But the necessity for flexible wrappings is the central and unchanging demand. We cannot say that these differences in cost gave du Pont monopoly power over prices in view of the findings of fact on that subject. It is the variable characteristics of the different flexible wrappings and the energy and ability with which the manufacturers push their wares that determine choice. A glance at “Modern Packaging,” a trade journal, will give, by its various advertisements, examples of the competition among manufacturers for the flexible packaging market. The trial judge visited the 1952 Annual Packaging Show at Atlantic City, with the consent of counsel. He observed exhibits offered by “machinery manufacturers, converters and manufacturers of flexible packaging materials.” He states that these personal observations confirmed his estimate of the competition between cellophane and other packaging materials. Finding 820. From this wide variety of evidence, the Court reached the conclusion expressed in Finding 838: “The record establishes plain cellophane and mois-tureproof cellophane are each flexible packaging materials which are functionally interchangeable with other flexible packaging materials and sold at same time to same customers for same purpose at competitive prices; there is no cellophane market distinct and separate from the market for flexible packaging materials; the market for flexible packaging materials is the relevant market for determining nature and extent of duPont’s market control; and duPont has at all times competed with other cellophane producers and manufacturers of other flexible packaging materials in all aspects of its cellophane business.” The facts above considered dispose also of any contention that competitors have been excluded by du Pont from the packaging material market. That market has many producers and there is no proof du Pont ever has possessed power to exclude any of them from the rapidly expanding flexible packaging market. The Government apparently concedes as much, for it states that “lack of power to inhibit entry into this so-called market [i. e., flexible packaging materials], comprising widely disparate products, is no indicium of absence of power to exclude competition in the manufacture and sale of cellophane.” The record shows the multiplicity of competitors and the financial strength of some with individual assets running to the hundreds of millions. Findings 66-72. Indeed, the trial court found that du Pont could not exclude competitors even from the manufacture of cellophane, Finding 727, an immaterial matter if the market is flexible packaging material. Nor can we say that du Pont’s profits, while liberal (according to the Government 15.9% net after taxes on the 1937-1947 average), demonstrate the existence of a monopoly without proof of lack of comparable profits during those years in other prosperous industries. Cellophane was a leader, over 17%, in the flexible packaging materials market. There is no showing that du Pont’s rate of return was greater or less than that of other producers of flexible packaging materials. Finding 719. The “market” which one must study to determine when a producer has monopoly power will vary with the part of commerce under consideration. The tests are constant. That market is composed of products that have reasonable interchangeability for the purposes for which they are produced — price, use and qualities considered. While the application of the tests remains uncertain, it seems to us that du Pont should not be found to monopolize cellophane when that product has the competition and interchangeability with other wrappings that this record shows. On the findings of the District Court, its judgment is Affirmed. Mr. Justice Clark and Mr. Justice Harlan took no part in the consideration or decision of this case. [For concurring opinion of Mr. Justice Frankfurter, see post, p. 413.] [For dissenting opinion of The Chief Justice, joined by Mr. Justice Black and Mr. Justice Douglas, see post, p. 414.] APPENDIX A. VIII. Results op du Pont’s Competition With Other Materials. (Findings 279-292.) 279. During the period du Pont entered the flexible packaging business, and since its introduction of moisture-proof cellophane, sales of cellophane have increased. Total volume of flexible packaging materials used in the United States has also increased. Du Pont’s relative percentage of the packaging business has grown as a result of its research, price, sales and capacity policies, but du Pont cellophane even in uses where it has competed has not attained the bulk of the business, due to competition of other flexible packaging materials. 280. Of the production and imports of flexible packaging materials in 1949 measured in wrapping surface, du Pont cellophane accounted for less than 20% of flexible packaging materials consumed in the United States in that year. The figures on this are: Thousands of Square Yards Glassine, Greaseproof and Vegetable Parchment Papers .................................. 3,125,826 Waxing Papers (18 Pounds and over).......... 4,614,685 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_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. A. Ray SEGAL, Appellant, v. UNITED STATES of America, Appellee. No. 15726. United States Court of Appeals Eighth Circuit. Aug. 6, 1957. Rehearing Denied Sept. 13, 1957. Linus J. Hammond and Richard B. Ryan, St. Paul, Minn., for appellant. Clifford Janes, Assistant United States Atty., (George E. MacKinnon, United States Atty., and Kenneth G. Owens, Assistant United States Atty., were with him on the brief), for appellee. Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges. GARDNER, Chief Judge. Appellant has appealed from a judgment and sentence of conviction on an indictment of one count charging him with the offense of subornation of perjury. The indictment charged that appellant suborned one Mary K. Johnson to commit perjury as a witness in the trial of one Donald Nelson. In that ease Nelson was charged with transporting Mary K. Johnson in interstate commerce and with conspiring with one Robert Bannarn to accomplish such transportation in violation of the so-called Mann Act, 18 U.S.C.A. §§ 2421-2423. In the course of this opinion we shall refer to the appellant as defendant. In the instant case defendant entered a plea of not guilty and on trial the jury returned a verdict of guilty. The verdict, however, on motion of defendant was set aside and a new trial granted. On the second trial defendant wa.s again found guilty and his motions fcr judgment of acquittal and for a new trial were respectively overruled and judgment and sentence of conviction entered upon the verdict from which defendant prosecutes this appeal. Defendant first challenges the sufficiency of the evidence to sustain the verdict. While the indictment contained but one count and charged but one offense it contained nine separate paragraphs each dealing with a separate subject matter. The court submitted but four out of these nine subjects of perjury to the jury. If there was proof that the testimony referred to in any one of these paragraphs was false and proved to be suborned that would sustain the charge of subornation of perjury. The trial court so instructed the jury and we believe this statement of the applicable law is not controverted by defendant on this appeal. Of the four subject matters constituting the allegedly perjured testimony given by the witness Mary K. Johnson at the Nelson trial one was that she did not engage in prostitution between November 11, 1952 and December 31, 1952 and did not hustle in Chicago, Illinois; second, that she did not use drugs as an addict in Chicago between November 11, 1952 and December 31, 1952; third, that she did not know she crossed a state line, and fourth, that she did not see Robert Bannarn about November 11, 1952. On the trial of the defendant she testified that her testimony on these questions given at the trial of Nelson was false and she also testified that the defendant induced her to give such false testimony. The testimony was all material to the issues involved in the Nelson case. To sustain the charge of subornation in this case there must have been proof that the testimony given by Mary K. Johnson at the Nelson trial was false and this fact can only be established by the testimony of two witnesses or by the testimony of one witness and proof of corroborating circumstances. Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Hashagen v. United States, 8 Cir., 169 F. 396; Arena v. United States, 9 Cir., 226 F.2d 227; United States v. Palese, 3 Cir., 133 F.2d 600; Goins v. United States, 4 Cir., 99 F.2d 147. The question of the quantum of corroboration required by the rule is, however, for the jury. Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495; Doan v. United States, 9 Cir., 202 F.2d 674. On the question of the corroboration of Mary K. Johnson’s testimony that she testified falsely in the Nelson case that she did not engage in prostitution between November 11, 1952 and December 31, 1952, we need not go into the sordid details recited by a number of witnesses, among them officers of the Chicago police department. We have examined the testimony and find it amply corroborates the testimony of Mary K. Johnson in the present case. On the question of the use of narcotics the testimony of Mary K. Johnson given at the trial in the instant case was corroborated by testimony of police officers and by the testimony of a Mrs. Carlson and a Mrs. Warner. We have examined it and think it clearly sufficient to go to the jury on the question of corroboration. On the question of the falsity of Mary K. Johnson’s testimony given at the Nelson trial to the effect that she did not know whether she crossed a state line, corroboration is found in the testimony of Robert Bannarn and Rebecca Aron and other related circumstances. The falsity of Mary K. Johnson’s testimony given at the Nelson trial that she had not seen Robert Bannarn in Chicago about November 11, 1952 is corroborated by the testimony of a Mrs. Bowde who testified that Mary K. Johnson lived in an apartment building owned by her in Chicago with Robert Bannarn from November 11, 1952 to December 26, 1952, and by the testimony of Robert Bannarn to the same effect. On this phase of the case we conclude that on the four matters submitted to the jury by the court’s instructions there was ample evidence, if believed by the jury, to prove beyond a reasonable doubt that Mary K. Johnson committed perjury on the trial of the Nelson case. It remain to consider whether the testimony was sufficient to go to the jury on the question as to whether the defendant induced Mary K. Johnson to give the above noted perjured testimony. While perjury must be established by the testimony of at least two witnesses or by the testimony of one witness and proof of corroborating circumstances, it is not necessary that the act of suborning perjury be so established. Doan v. United States, supra; Catrino v. United States, 9 Cir., 176 F.2d 884; Cohen v. United States, 2 Cir., 27 F.2d 713; United States v. Silverman, 3 Cir., 106 F.2d 750; Outlaw v. United States, 5 Cir., 81 F.2d 805. Thus, in Doan v. United States, supra, which involved the charge of subornation of perjury, the applicable rule is stated as follows [202 F.2d 678]: “-» * -x- This means that while it was incumbent upon the Government to prove that the testimony given by Georgia Martin before the Grand Jury was false, and to prove that it was thus false by two independent witnesses, or by one such witness plus corroborating circumstances, yet as to the element of subornation of the perjury, that is to say, as to whether the defendant induced the commission of the perjury on her part, ‘the proof is the same as in all other crimes,—proof beyond a reasonable doubt’.” In Catrino v. United States, supra, it is said, inter alia [176 F.2d 888]: “In a subornation of perjury case, proof that the defendant induced, the commission of the offense, is not subject to this requirement.” The witness Mary K. Johnson testified positively that the defendant in the instant case induced her to give this false testimony. If the jurors believed this testimony, as they manifestly did, it was sufficient to sustain the verdict. However, we find that her testimony in this regard finds corroboration in attending circumstances. There was testimony that defendant admitted to one Shelly Warren that he induced Mary K. Johnson to commit perjury in the trial of the Nelson case, and there was proof of defendant’s words and acts of admission in attempting to impede the witness Rebecca Aron on the first trial of the instant case. These and other attending circumstances will be hereinafter considered in connection with the question of admissibility of evidence. The weight of the testimony and the credibility of the witnesses were questions for the jury, at least as to this element of the offense charged, and we think, viewing the evidence in a light most favorable to the government, it was ample to prove this element of the offense beyond a reasonable doubt. The government offered in evidence certain certificates of the Clerk of the court with attached documents designated as “Government Exhibits 3 and 4”. The certificates were to the effect that the attached documents were true copies of docket entries, term minutes, Judge Nordbye’s order setting aside the jury’s verdict and granting motion for judgment of acquittal and the jury’s verdict of guilty in the Nelson case. The offer was objected to as follows: “Mr. Hammond: There is no objection by the defendant as to foundation. Defendant does object to the exhibits on the ground that they are, in the main, wholly irrelevant and immaterial and they put before the jury many matters that should not be before the jury. “Mr. Ryan: As to material parts the witness can testify. “Mr. Hammond: Most of the matters in here, that are listed in here, are things wholly irrelevant and immaterial to the trial of this case. We have no objection to Mr. Chell Smith testifying to material matters. ****** “Mr. Hammond: We have the same objection to Government’s Exhibit 4 on the ground that in the main the entries therein are irrelevant and immaterial to the trial of this case.” The objection was overruled. The objection was a general one and does not point out any specific grounds for excluding the testimony. This being a case involving perjury it was incumbent on the government to prove that the perjured testimony alleged to have been given in the Nelson trial was g:wen in a competent tribunal and that such testimony was material to the cause then on trial. In 41 Am.Jur., Perjury, Sec. 64, p. 35, it is said: “Thus, in order to convict a person of perjury alleged to have been committed on the trial of a case in a court of record, the production of the record in that case or of a duly authenticated transcript thereof, is essential, unless the formal proofs of such judicial proceeding are waived or dispensed with by admission or otherwise.” We do not think this general objection called to the court’s attention any specific ground for excluding the evidence, and in any event it could scarcely be said to be prejudicial. Complaint is made of the ruling of the court in admitting into evidence testimony of one Shelly Warren to the effect that defendant admitted to her that he had induced Mary K. Johnson to perjure herself in the Nelson trial. Complaint is also made of the ruling of the court in admitting into evidence testimony that defendant had attempted to impede one Rebecca Aron as a witness in the first trial of the instant case. The evidence was clearly admissible. The acts and words of the defendant were in the nature of admissions and they tended to corroborate the testimony of the witness Mary K. Johnson. Evidence of a defendant’s attempt to tamper with or impede a witness is admissible as an act of admission. Carnahan v. United States, 8 Cir., 35 F.2d 96; Wallace v. United States, 7 Cir., 243 F. 300; DiCarlo v. United States, 2 Cir., 6 F.2d 364; Vause v. United States, 2 Cir., 53 F.2d 346. As this testimony was relevant and competent to prove acts in the nature of admissions of the crime charged, the mere fact that it may have tended to prove commission of another crime did not render it inadmissible. Bram v. United States, 8 Cir., 226 F.2d 858. It is urged that the court erred in permitting the defendant to be interrogated on cross-examination on matters not referred to in his direct examination and particularly with reference to his income tax returns and with reference to whether Jimmy Baker’s place was not a principal hang-out for Minneapolis prostitutes. Defendant, having taken the witness stand in his own behalf, was subject to cross-examination to the same extent as any other witness. That cross-examination might go to any fact in issue or to the impeachment of his credibility. United States v. Lowe, 3 Cir., 234 F.2d 919; United States v. Silver, 2 Cir., 235 F.2d 375. In accounting for his presence at 707 Bradford and at a so-called “Jimmy Baker’s place” in Minneapolis, Minnesota, he had offered somewhat conflicting explanations. Mary K. Johnson had testified without objection that he told her, when talking to her prior to the Nelson trial, “Now if they ask you anything about the place at 707 Bradford, I don’t want you to say that I own the house.” In his testimony in chief he apparently attempted to leave the impression that the only occasion for his being in these places was in his capacity as an attorney because property of a deceased client needed to be attended to for the benefit of an estate and its heirs, and to see to the collection of rents for such estate. He later admitted that he was the owner of the property at 707 Bradford, and when being interrogated as to the collection of rents he himself suggested that he could not recollect the amounts collected but that his income tax returns would show. This was the occasion for producing certain income tax reports and interrogating him with reference thereto. They were not introduced in evidence and the cross-examination went to the credibility of the witness. Defendant was asked whether or not a so-called “Jimmy Baker’s place” was not a principal hang-out for Minneapolis prostitutes. There was no objection and the witness answered, “I wouldn’t know that.” Thereafter, on motion of defendant’s counsel, the question and answer were stricken and no prejudice could result therefrom. Apparently defendant had a clientele frequenting these places, some of whom were confessedly prostitutes. The testimony went to the credibility of the defendant as a witness. We think it manifest that the testimony so produced on cross-examination, in view of all the other testimony in the case, could not have been prejudicial. The scope of cross-examination is to be left largely to the discretion of the trial judge and in the absence of an abuse of such discretion, or of a manifest miscarriage of justice, reversal may not be had. Christianson v. United States, 8 Cir., 226 F.2d 646; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The question of the scope of cross-examination was considered by us in Christianson v. United States, supra, and in the course of the opinion in that case we said [226 F.2d 655]: “Error is charged on account of the cross-examination of the Defendant Paster. The general rules of cross-examination are well defined. They need not be restated. These general rules must have some flexibility in order that they may be properly applied to the great number of varied situations which arise. To accomplish the necessary flexibility and at the same time preserve the basic and substantive objectives of these rules, a considerable area of discretion is assigned to the trial court in applying the rules to a specific situation. Such a situation must be viewed and reckoned with by the trial court in the light of all related incidents occurring during the trial and cannot be confined to an isolated question or series of questions. While the questions complained of, which the court required Paster to answer, did not in themselves tend to prove or disprove the specific charge, they were sufficiently germane to portions of Paster’s direct examination and statements of his counsel as to prevent the trial court’s rulings from being an abuse of discretion.” We are of the view that the scope of cross-examination of this defendant permitted by the trial court did net constitute an abuse of discretion. The defendant produced a number of character witnesses, some of whom were engaged in the practice of law. On cross-examination certain of these lawyer witnesses were asked the following question: “Have you heard anything about the proceedings in the case of Max Herman against Joseph St. Dermis, which was in Municipal Court, City of Minneapolis, in October 1945, and have you heard whether in that trial the defendant, Mr. A. Ray Segal, presented to the Court and offered in evidence a card registered mail postal receipt in which it appeared that the date on the receipt had been rewritten from the time it had first been written, as to c.ate, and that thereafter the postal authorities here in the City of Minneapolis testified that the date that was then apparently the date, the rewritten date on the card as offered in evidence, was an earlier date than the records of the Minneapolis Post Office Department, as testified to in that case showed. That thereafter Mr. Segal representing the plaintiff, whose case depended on the receipt, the claim of having been received on the date shown in the altered date, Mr. Segal then moved for dismissal of the case. Have you heard about that?” Over objection the witnesses were permitted to answer, each of whom answered that he had not heard of the incident. At the time of permitting this question the court instructed the jury as follows: “I instruct the jury that what is happening now is this: The defendant has called character witnesses, and the basis for the evidence given by those character witnesses is the reputation of the defendant in the community, and since the defendant tenders the issue of his reputation the prosecution may ask the witness if he has heard of various incidents in his career. I say to you that regardless of his answer you are not to assume that the incidents asked about actually took place. All that is happening is that this witness' standard of opinion of the reputation of the defendant is being tested.” Before giving the instruction the court asked counsel for defendant if he wished it to be given, to which counsel replied, “Yes”. Out of the hearing of the jury, before propounding the foregoing question, government counsel produced convincing evidence that the incident referred to had a factual basis. While witnesses are called to support a defendant’s so-called character they can and do in fact testify only to the good reputation or good name of the defendant. Hence, a witness called as a character witness may properly be cross-examined as to whether or not he ever heard of some incident that might have a bearing on his good reputation. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; Spalitto v. United States, 8 Cir., 39 F.2d 782; 2 Wigmore on Evidence, Sec. 988; Under-hill on Criminal Evidence, 3rd Ed., Sec. 141. In Underhill on Criminal Evidence, supra, referring to the scope of cross-examination of a character witness it is said: “But a witness to good character may be asked on cross-examination to test his credibility whether he has heard rumors of particular and specific charges of the commission of acts inconsistent with the character which he was called to prove, generally as to the grounds of his evidence, not so much to establish the truth of such facts or charges, as to test his credibility, and to determine the weight of his evidence. He may be asked if he has not heard some general report which contradicts the good reputation which he had been called upon to prove.” The witnesses here were simply asked whether or not they had heard of the incident referred to in the question. We think the cross-examination was eminently proper. Defendant challenges the correctness of two instructions given the jury in the instant case. The court at the request of the government gave the following instruction: “You are instructed that the fact that Mary Z. Johnson has admitted that she had committed perjury in giving false testimony in the Donald Nelson cases is no defense to this defendant as she is not to be considered as an accomplice to the crime of subornation of perjury. The fact that she has been a prostitute and narcotic addict or at least narcotic user is no defense to this defendant. However, you are instructed that you should receive the testimony of Mary K. Johnson with care and caution.” Of course, the. instructions must be considered as a whole and not by piecemeal. When so considered we think the instruction was a correct statement of the applicable law. Mary K. Johnson was not an accomplice of the defendant as the offenses of perjury and subornation of perjury are separate and distinct offenses, and Mary K. Johnson’s perjury was no defense to defendant who was charged with subornation of perjury. United States v. Thompson, C.C. Or., 31 F. 331. It is to be noted that this instruction warns the jury that the testimony of Mary Z. Johnson should be received with care and caution, and it wall be observed too that the court in other instructions instructed the jury as to the credibility of witnesses, particularly noting that the testimony of Mary Z. Johnson, who was in fact a prostitute and narcotic user, should be received with care and caution, and the court further meticulously instructed the jury that as to the falsity of the perjured testimony it must be corroborated, that the burden rested upon the government to prove the defendant’s guilt beyond a reasonable doubt and that the presumption of the defendant’s innocence remained with him throughout the trial until such time, if ever, that he has been proven guilty beyond a reasonable doubt. Complaint is also made of the following portion of an instruction given by the court: “In considering whether or not the requirement of corroboration has been met, you may consider the testimony of other witnesses insofar as it bears upon the truth or falsity of such testimony and such facts and circumstances, if any there be, which tend to throw light on the truth or falsity of such testimony and such admissions by word or act, if any, as you may find to have been made on these matters by the defendant, Segel himself.” This instruction went to the question of corroboration and what facts, if proven, might be considered by the jury for that purpose. We have already considered the question in connection with the charge that the evidence of corroboration was insufficient to satisfy the rule that perjury must be established by the testimony of at least two witnesses or by the testimony of one witness and corroborating circumstances. There was before the jury the many circumstances referred to by us in discussing the question of the sufficiency of the evidence, and in addition to those circumstances specifically pointed out by us evidence was offered by the defendant himself in the nature of extra-judicial statements of Mary Z. Johnson made to special agents of the Federal Bureau of Investigation which were consistent with her testimony to the effect that her testimony in the Nelson case was false. These statements contained the following recitals: “On or about November 1, 1952 at approximately 12:00M at Olson Highway and Aldrich Ave. in Minneapolis, I met Donald Nelson after he had finished his turn at driving a cab for the Yellow-Cab Co. I met Don Nelson and we went into Ampy’s tavern, Olson Highway and Aldrich Ave. where we ate and it was at this time that I requested him to take me to Chicago, 111. Don knew that I was a prostitute as I had, upon many occasions, discussed my hustling with him. “Nelson and I were later joined by Becky Arons, a prostitute, (colored) who lived with Don Nelsor and another man whose name I do not choose to mention. We four then discussed the trip and we finally agreed to go and to pay Nelson, twenty-five dollars plus gas. We left Minneapolis around 5:00 a. m. in Nelson’s 1952 Buick Special, red in color. We thought the police were following us so we four, Becky Arons, Nelson, myself, and the fourth fellow drove very slowly for a time. In St. Paul we stopped at a gas station on Kellogg St. and had some difficulty with the operator as neither of us wanted to pay for the gas and as a result the operator of the station called the police and the police talked to us. “We left St.. Paul around 6:00 a. m. and we headed toward Chicago with Nelson driving. We travel-led slowly as we thought we were being followed by the police and Nelson was real careful and drove around for some time before we drove across the state line. Nelson made sure that we were not being followed before we crossed into Wisconsin. “On the trip Nelson kept asking us for the rest of the money which we refused to give him until we got to Chicago. We did not intend to pay him so we, meaning my friend and I, kept giving him Marijuana (reefer) cigarettes and Don and Becky discussed the possibility of them staying a few days in Chicago whereby Becky could turn some tricks. Becky had hustled in Chicago before and knew the town. “We four traveled to a little town about 100 miles from Chicago when Nelson told us to get out as he knew by this time that we were not going to pay him for the trip. My friend and I got out of Nelson’s car and caught a bus to Chicago. The trip cost us approximately $4.00 apiece from this little town in Wisconsin to Chicago. To the best of my knowledge, Nelson and Becky drove back to Minneapolis.” There was evidence of extra-judicial admissions by word and act of defendant, including admissions made to Shelly Warren and to one Dorothy Nelson, and his attempts to impede witness Rebecca Aron, and evidence of defendant’s demeanor as a witness in his own behalf, including his evasive and contradictory testimony. This instruction made it clear to the jury what character of testimony might be considered as constituting corroboration. As heretofore indicated in this opinion the quantum of corroboration was for the jury (See Hashagen v. United States, supra) and, hence, the court very properly gave this instruction. We have considered all the other contentions urged by the defendant but think they are without merit. Defendant has been twice tried; two juries have found him guilty; he has been represented by very able counsel, and on the whole record we think he has had a fair trial. The judgment appealed from is therefore affirmed. A true copy. 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_appnatpr	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. Erwin Pascacio CLOTIDA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Olivia Gertrude CHATTEN, Defendant, Appellant. Nos. 88-1902, 88-2039. United States Court of Appeals, First Circuit. Heard May 5, 1989. Decided Dec. 20, 1989. Ramon E. Dapena, for appellant Erwin Pascacio-Clotida. Frank Catala Morales, Bayamon, P.R., for appellant Olivia Gertrude Chatten. Jose A. Quiles, Asst. U.S. Atty., Chief, Criminal Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for the U.S. Before SELYA and ALDRICH, Circuit Judges, and RE, Judge. The Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation. RE, Chief Judge: Appellants, Erwin Clotida and Olivia Chatten, appeal from a judgment of conviction entered on August 15, 1988, following a jury trial in the United States District Court for the District of Puerto Rico. Clo-tida and Chatten were convicted of aiding and abetting each other in the possession with the intent to distribute cocaine, importation of cocaine, and possession of cocaine on board an aircraft in violation of United States Code, Title 18, Section 2, and Title 21, Sections 841(a)(1), 952(a), and 955. Clotida and Chatten contend that the district court erred in denying their respective motions for acquittal made at the close of the government’s case-in-chief pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Clotida also contends that the trial judge “committed a reversible error by allowing the prosecutor to present, as rebuttal evidence, a substantial part of his case in chief, [a] ... confession by the appellant[,] ... Clotida.” The threshold question as to both Clotida and Chatten is whether they waived their rights on their Rule 29 motion because of their failure to have renewed the motion at the close of all the evidence. A question is also presented as to whether, under the circumstances of this trial, the government’s use of Clotida’s inculpatory statements in rebuttal rendered the trial unfair by unconstitutionally impairing his fifth amendment right to testify in his own defense. Since, after having offered his own testimony as a defense, Clotida failed to renew his motion for acquittal at the close of all the evidence, his motion is deemed waived. His conviction, therefore, may only be reviewed under a “manifest injustice” standard. Upon an examination of all the evidence presented at trial, we find the evidence against Clotida to be sufficient to sustain a verdict of guilty. Since we find his contention as to the government’s rebuttal evidence to be without merit, Cloti-da’s judgment of conviction is affirmed. Since Chatten did not offer any evidence in her own defense, her Rule 29 motion is not deemed waived. Therefore, only evidence presented in the government’s casein-chief may be considered. Since the evidence against Chatten “is largely circumstantial the test is ‘whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.’ ” United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978) (quoting Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964)). The total evidence presented by the government in its case-in-chief against Chatten fails to support the jury’s verdict of guilty beyond a reasonable doubt. Since her Rule 29 motion should have been granted, the judgment of conviction is reversed. BACKGROUND Clotida and Chatten, residents of the Netherlands, went on vacation in Ecuador to “look for a beach.” At trial, during cross-examination, Clotida, in response to questions by the prosecutor, admitted that he had purchased the airline tickets in Amsterdam on February 16, 1988, with his own money. Clotida testified that he and Chatten arrived in Quito, Ecuador on February 27, 1988. While in Quito, Clotida claims to have been introduced to Serapio by a certain Vivian, who had travelled with Clotida and Chatten from Amsterdam to Quito. Serapio asked Clotida if he would take some luggage back to Amsterdam for him. Serapio told Clotida that he would receive a “reward” if he delivered the luggage at the airport in Amsterdam to “someone there who would have a sign in his hand with the name Serap[io] on it and [Clotida would] give it to that person.” Clotida stated that because he was “broke,” he accepted Sera-pio’s offer. Clotida testified that Serapio gave him “two pieces of luggage with clothing....” According to Clotida, he did not check the contents of the suitcases until the night before he left Quito, March 5, 1988. Cloti-da testified that he opened the suitcases “[t]o make sure that there were only clothes in there, and that was so, there were only clothes in there.” Clotida also stated that because he had no suitcases of his own, he intermingled his and Chatten’s clothes with those of Sera-pio. In addition, he testified that he borrowed a large suitcase from Vivian, in exchange for a smaller suitcase which he had brought to Ecuador. On cross-examination, Clotida denied that he detected cocaine in the clothes in the suitcases given to him by Serapio. He admitted, however, that he did spray deodorant on his clothes, “so that they wouldn’t smell like the others.” In his testimony, Clotida also stated that, on March 6, 1988, he and Chatten boarded an Iberia flight departing from Quito, Ecuador to Amsterdam, the Netherlands, with stop-overs in San Juan and Madrid. In the course of a cargo inspection in San Juan, United States Customs Inspector Hector Albino of the Contraband Enforcement Team (CET) noticed a “heavy” suitcase emitting a “chemical” or “perfume-like odor.” Upon opening the suitcase, Inspector Albino found “various clothing which were soaked, that felt moist, wet, sticky to the touch, like they were starched.” Inspector Albino made a field test which consisted of cutting a section of the garment and placing it in a tube with a chemical. He obtained a blue color reaction which indicated the presence of cocaine. Inspector Albino proceeded to notify other members of the CET including the team leader, Juan Otado. Inspector Otado instructed the CET to check all luggage to Amsterdam, and, in particular, to check the baggage tag numbers of the luggage to see if they corresponded with the one containing the contraband. Upon further investigation, Customs Inspectors Nilsa Perez and Luis Gonzalez found two additional suitcases with the same baggage tag numbers. These suitcases were opened, and they too contained clothing which a field test revealed were impregnated with cocaine. The Customs Inspectors seized the suitcases and proceeded to identify the passengers to whom they belonged. They asked flight attendants to search for passengers whose final destination was Amsterdam. Flight information indicated that, of the three persons who were bound for Amsterdam, one cancelled, leaving only Clotida and Chatten. The Customs Inspectors went to the pre-boarding area to find Clotida and Chatten to verify that they were the owners of the suitcases in question. This verification was made by matching the baggage claim tickets Clotida had in his possession with those of the suitcases containing the contraband. Clotida and Chatten were arrested, and were read their Miranda Rights in English. Because he stated he did not understand English, Clotida was also read his rights in Spanish. On Clotida’s person were found the airline tickets, boarding passes, baggage claim tickets, and passports for both him and Chatten. In addition, Clotida was in possession of a formula for sodium carbonate (Na2C03). Clotida and Chatten were then taken to the Customs enclosure area where they were given the Miranda Warning in written form. Clotida was also given a “Waiver of Rights” form, which he signed, after he was told he was free to sign it “if he wanted to.” While Clotida was in the Customs enclosure area the seized suitcases were weighed. In answer to Inspector Otado’s question as to the weight of the suitcases, Inspector Albino responded that the gross weight of the luggage was 133 lbs. Upon hearing this, Clotida commented “[tjhat’s not correct because there’s only 32 pieces of clothing that are saturated with cocaine.” At trial, in its case-in-chief, the government called as witnesses Customs Inspectors Albino, Otado, Perez and Gonzalez. They all testified as to their roles and actions as to the discovery and examination of the three suitcases which contained the contraband. Inspectors Albino and Otado also testified as to what took place when Clotida was taken into custody and was brought to the Customs enclosure area. The government also called Sergeant Hiram Gomez Santini, of the Puerto Rico Police Department, who is assigned to the Drug Enforcement Agency (DEA). Sergeant Gomez testified that he was called to the airport on March 6, 1988, so that the Customs Inspectors could turn over the evidence seized in the arrest of Clotida and Chatten. He also testified as to what was done to the evidence once it came into his possession. The government’s last witness in its case-in-chief was Dorothy Ann Roman, a chemist, of the DEA. After qualifying as an expert, Ms. Roman described the analysis she performed on the contraband. She testified that “the net weight of the cocaine ... extracted [from the clothing] would amount to 5,895 grams.” When questioned about the formula for sodium carbonate, which Clotida had on his person, she testified that sodium carbonate was “a common way ... to extract cocaine from another substance.” At the close of the government’s case, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Clotida and Chatten moved for acquittal. Based on the evidence presented in the government’s casein-chief the motions were denied. In denying the motions the district court stated: Certainly, from that evidence a juror can make reasonable inferences to the effect that they planned this trip to go to a source of cocaine, to procure the cocaine, to conceal the cocaine as best as possible in the way it was impregnated into the clothing, and to bring that cocaine back to Holland, and that they both knew what was happening and they both knew that that was the purpose of the trip. The defense consisted solely of the testimony of Clotida. Essentially, Clotida testified as to his trip to Ecuador with Chatten, and how he came to meet Serapio. He testified that “there were only clothes [in the suitcases],” and that he did not see any drugs. Clotida sought to exculpate Chat-ten by testifying that she had no knowledge of his meeting with Serapio, and that she had not aided him in packing the suitcases. On cross-examination, Clotida denied that he had made the statement to Customs Inspectors, that there were “32 pieces of clothing ... saturated with cocaine.” At the close of the defense, neither Clotida nor Chatten renewed their Rule 29 motion. In rebuttal, the government impeached Clotida’s testimony using statements he made after his arrest. Sergeant Hiram Gomez Santini testified that, after his arrest, Clotida was taken to the DEA district office in San Juan, and it was there that Clotida told Sergeant Gomez that: he looked inside the bag, touched the clothes, tasted them and smelled them and he determined that it was cocaine, and that a strong odor was coming from the clothing and that he was afraid of being detected by the authorities so he sprayed deodorant on the clothing and spread them in three different bags. The jury found Clotida and Chatten guilty on all three counts of the grand jury indictment. I. The Rule 29 Motions In pertinent part, Rule 29(a) of the Rules of Criminal Procedure provides that: The court on motion of a defendant ... shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. Fed.R.Crim.P. 29(a). The proper procedure for making a Rule 29(a) motion is set forth in the case of United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978): Under [this] rule, a defendant who moved for a judgment of acquittal at the close of the government’s case must move again for a judgment ... at the close of the entire case if he thereafter introduces evidence in his [own] defense because, by presenting such evidence, the defendant is deemed to have withdrawn his motion and thereby to have waived any objection to its denial. A. As to Defendant Erwin Clotida Clotida failed to renew his Rule 29 motion at the close of the entire case after having offered evidence in his own defense. This failure, therefore, constitutes a waiver of Clotida’s Rule 29(a) motion. See United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). Hence, on this appeal, Clotida may only prevail if it is demonstrated, after an examination of all the evidence offered at trial, that it would be a “gross” or “manifest injustice” to sustain the conviction. See United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir.1989); United States v. Cheung, 836 F.2d 729, 730 n. 1 (1st Cir.1988) (per curiam). The evidence at the trial reveals clearly that there is no doubt that Clotida carried the luggage or suitcases for financial gain. Furthermore, the circumstances indicate that Clotida was in constructive possession of the luggage. It is not questioned that Clotida was in possession and control of the baggage claim tickets. In addition, on Clo-tida’s person was found the chemical formula to extract the cocaine from the impregnated clothing. Other than the testimony of Clotida, which was refuted by the government and disbelieved by the jury, there is no evidence to rebut the inference that Clotida knew that the clothing was impregnated with cocaine. Sergeant Gomez testified that Clotida admitted his knowledge of the cocaine in the suitcase, and, in fact, tried to conceal its odor by spraying with deodorant. Moreover, Clotida’s spontaneous utterance at the Customs enclosure area that there were “32 pieces of clothing ... saturated with cocaine” was found by the district court to be “voluntarily given ... prompted by himself without any question propounded to him.” Hence, as to Clotida, the evidence overwhelmingly supports the verdict of the jury. His testimony, that he was vacationing in Ecuador in search of a beach, and there met a stranger from whom he received the impregnated clothes, strains credibility. Since it was entirely reasonable for the jury to disbelieve his testimony, his conviction is clearly not a “manifest injustice.” B. As to Defendant Olivia Chatten Chatten did not present any evidence in her own defense, nor did her attorney examine her codefendant, Clotida. It has been uniformly held that if a defendant “rests v/ithout introducing evidence of his own he need not renew his [Rule 29] motion in order to preserve his objection to the sufficiency of the evidence. The motion need not be renewed, and defendant waives nothing, even if a eodefendant has offered evidence.” C. Wright, Federal Practice and Procedure, § 463 (2d ed. 1982) (footnotes omitted); see also Lopez, 576 F.2d at 843 (codefendant’s testimony favorable to defendant not deemed to waive defendant’s prior Rule 29 motion). On the facts presented, therefore, Chat-ten did not waive the Rule 29 motion which she made at the close of the government’s case-in-chief. Accordingly, in order to sustain Chatten’s conviction it must be shown that, when examined in a light most favorable to the government, the evidence presented in the government’s case-in-chief, including all inferences that may be drawn therefrom, would permit a reasonable juror to find guilt beyond a reasonable doubt. See Lopez, 576 F.2d at 843. Hence, in the language of Lopez, “[sjince we can review the sufficiency of the evidence only as of the time the Rule 29 motion was made, we consider only the government’s testimony in chief and exclude the ... evidence presented by codefendant” Clotida. Id. See also United States v. Evans, 572 F.2d 455, 475 (5th Cir.), cert. denied sub nom. Tate v. United States, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); United States v. Polizzi, 500 F.2d 856, 904 (9th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963). Clotida and Chatten are charged with aiding and abetting each other in the commission of the offenses of possession with the intent to distribute cocaine, importation of cocaine, and the possession of cocaine aboard an aircraft. To help determine whether a party is an aider or abettor, the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949), articulated the following test: In order to aide and abet another to commit a crime it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)). In contrast to the evidence against Cloti-da, Chatten’s connection with the criminal enterprise is based entirely on circumstantial evidence. Circumstantial evidence has been defined as “proof which does not actually assert or represent the proposition in question, but which asserts or describes something else, from which the trier of fact may either (i) reasonably infer the truth of the proposition, ... or (ii) at least reasonably infer an increase in the probability that the proposition is in fact true.... ” 1 D. Louisell & C. Mueller, Federal Evidence § 94 (1977). It has been noted that “[t]he ... general problem of circumstantial proof is to determine whether proffered evidence indirectly or inferentially supports the proposition sought to be proved.” Id. at § 91. It cannot be doubted, however, that circumstantial evidence is often very probative. As Professor Wigmore notes, without allowing the introduction of evidence that permits “an inference upon an inference,” “hardly a single trial could be adequately prosecuted.” 1A J. Wigmore, Evidence § 41 (1983). Indeed, “the courts in general have recognized that circumstantial evidence may, in given settings, have equal if not greater weight than direct evidence.” 1 C. Torcía, Wharton’s Criminal Evidence § 5 (14th ed. 1985). Furthermore, it is important to note that, in the context of review of a motion for acquittal, “no legal distinction exists between circumstantial and direct evidence.” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986). The evidence presented by the government, in its case-in-chief against Chatten, is insufficient to sustain the jury’s verdict of guilty. United States v. Glover, 814 F.2d 15 (1st Cir.1987), represents a fair example of the farthest that this court has ventured in sustaining a conviction based entirely on circumstantial evidence. In Glover, the defendant was convicted of a conspiracy to possess cocaine with intent to distribute. On appeal, the defendant argued that the evidence was insufficient to support her conviction, “because there was no direct connection between her and either the drugs found in [her codefendant’s] possession or the drug paraphernalia found in her home.” Id. at 16. This court, however, sustained the conviction because the evidence showed that the defendant knew certain facts about the presence and location of the cocaine. Id. at 16-17. In Glover, the court concluded that: [T]he evidence of [the defendant’s] knowledge of open drug activity in her apartment, combined with her control of the closet containing the cash, permitted the inference that she at least tacitly agreed to participate in a plan to possess cocaine with the intent to distribute it in which her role included providing the premises for the drug venture and controlling the funds generated as a result of it. Id. at 17. Hence, we held that “the evidence, viewed as a whole in the light most favorable to the government, together with all legitimate inferences that can be drawn from it, was sufficient for a reasonable jury to conclude that [the defendant] conspired with the intent to distribute cocaine.” Id. at 16-17. In the present case, the evidence relied on to connect Chatten to the crime charged does not approach the evidence present in Glover. Rather, this is “a case of ‘mere presence’ in which [Chatten] was convicted simply because she was present at the scene of a crime and shared a relationship with the perpetrator.” Id. at 17. Hence, the present case is more closely analogous to United States v. Mehtala, 578 F.2d 6 (1st Cir.1978), rather than Glover. In Mehtala, the defendant was convicted of knowingly aiding and abetting in the importation of marijuana by boat. On appeal, this court noted that “[t]he Government’s entire proof consisted of Mehtala’s presence on the ship ... and inferences of a close relationship with the [ship’s] captain.” Id. at 10. The court stated that there was “[n]o evidence ... that Mehtala embarked on the voyage for any purpose other than a pleasure cruise. There [was] no indication that she had a prior association with the captain, that she used marijuana, or that she had been engaged in previous drug operations.” Id. The court reasoned that: Even if through the supposed close relation between Mehtala and the ... captain, Mehtala obtained knowledge of the presence of the marijuana, this knowledge would not be sufficient to convict her of aiding and abetting. “Mere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.” Id. (quoting United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977)). Hence, in Mehtala, this court reversed the conviction because the government had not proved the defendant’s guilt beyond a reasonable doubt. See id. In this case, the government, in its casein-chief, presented no evidence that Chat-ten assisted Clotida in the smuggling of cocaine, or, even apart from assisting, had any knowledge of the presence of the cocaine. The government’s case against Chatten consisted of the evidence of the clothing, impregnated with cocaine and found in the suitcases with baggage tag numbers that matched those in the possession of Clotida. The evidence is clear, as the arresting officer Inspector Albino testified, that it was Clotida who “had both airline tickets, all the baggage claim tickets and both their passports.” From the government’s casein-chief, the only evidence that may be said to connect or tie Chatten to the crime was the fact that she was present at the airport in San Juan, and had accompanied Clotida from Quito, Ecuador. The remainder of the government’s case dealt with the events that followed after the evidence was seized, and after Clotida and Chatten were arrested. That part of the testimony of Customs Inspectors Albino and Otado, which related to the events inside the Customs’ enclosure area, pertained only to Clotida. The testimony of Sergeant Hiram Gomez Santini related to what happened to the contraband after it was released by Customs, and the testimony of Roman, a chemist for the DEA, dealt with the tests performed on the contraband. Indeed, the only testimony which pertained directly to Chatten after her arrest, related to the reading of her Miranda Warning. In sum, no evidence in the government’s case-in-chief indicated that Chatten “associate^] [herjself with the venture, that [s]he participate^] in it as in something that [s]he wishe[d] to bring about, that [s]he [sought] by h[er] action to make it succeed.” See Nye & Nissen, 336 U.S. at 619, 69 S.Ct. at 769. It has been stated that “[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt, nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.” United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977) (citations omitted). Chatten reaps the full benefit of the presumption of innocence. The presumption of innocence of an accused in a criminal trial is a fundamental principle of the common law. Blackstone, in his commentaries, discussing presumptions in the criminal law, asserted that “the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” 4 W. Blackstone, Commentaries 352. In McKinley’s Case, 33 How.St.Tr. 275, 506 (1817), Lord Gillies of the High Court of Justiciary at Edinburgh asserted that “the presumption in favour of innocence is not to be re-dargued by mere suspicion.... I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman....” The origins of the presumption of innocence may be found in ancient Rome, and, indeed, can be traced to the codes of Athens and Sparta. See Coffin v. United States, 156 U.S. 432, 453-55, 15 S.Ct. 394, 402-03, 39 L.Ed. 481 (1895). In the United States, with commendable brevity, Wigmore states that “[t]he presumption of innocence is fixed in our law.” 9 Evidence § 2511 (emphasis omitted). In Coffin, in a portion of the opinion that is still valid and worthy of quotation, Justice Edward White stated that it “is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin, 156 U.S. at 453, 15 S.Ct. at 402. The Coffin Court, in stressing the importance of the presumption of innocence, concluded “that the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf....” Id. at 460, 15 S.Ct. at 405. Professor Wigmore, however, notes that “[n]o presumption can be evidence; it is a rule about the duty of producing evidence.” 9 Evidence § 2511 (emphasis in original) (citation omitted). In the words of Professor Wigmore, the “tem-poary aberration” caused by Coffin, as to the evidentiary effect of the presumption of innocence, “was soon afterwards discarded in the court of its origin.” Id. (citing Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897); Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910)). The presumption is nonetheless basic and essential. An American scholar writes that it “is a substantive principle of law which is so engrained in the accusatorial system of American justice that no one challenges its preferred and unquestioned position.” M. Bassiouni, Criminal Law and Its Processes § 2.2 (1969). The presumption also reflects a universally accepted norm proclaimed as a human right and fundamental freedom in article 11 of the Universal Declaration of Human Rights. G.A.Res. 217, 3 U.N.GAOR 71, 73, U.N.Doc. A/810, at art. 11 (1948) (“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law....”). In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), the Supreme Court held that the due process clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Beyond the rule that places the burden upon the prosecution of producing evidence to prove the accused guilty, Professor Wigmore states that “the presumption of innocence ... conveys for the jury a special and additional caution ... to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused.” 9 Evidence § 2511 (emphasis in original). Chatten did not waive her Rule 29 motion. Considering, therefore, that the evidence presented by the government in its case-in-chief, including all inferences that could be drawn therefrom, was insufficient to have permitted the jury to find her guilty beyond a reasonable doubt, Chat-ten's conviction was improper. Hence, the district court erred in denying Chatten’s Rule 29 motion. The essence of any truly civilized criminal justice system is fairness in the individual case. In reversing Chatten’s conviction, we are reminded that “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent [persons] are being condemned.” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072. To deem the evidence presented against Chatten adequate would do violence to the presumption of innocence, and the due process requirement that a defendant be proved guilty beyond a reasonable doubt. II. The Prosecution’s Rebuttal Clotida also argues that, “in allowing the prosecutor to bring [in] what amounted to a confession through rebuttal,” the district court abused its discretion by permitting the “surprise” of the defendant. Clotida asserts that the “sandbagging” tactics of the prosecution effectively deprived him of his fifth amendment right to testify in his own defense by impairing his ability to make an intelligent decision as to whether or not to testify. It has been stated that “[t]he function of rebuttal is to explain, repel, counteract or disprove evidence of the adverse party. The fact that testimony would have been more proper for the case-in-chief does not preclude the testimony....” United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir.) (citation omitted), cert. denied sub nom. King v. United States Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_numappel	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. HOOVER et al. v. ECKERD’S CUT RATE MEDICINE CO., Inc. No. 4892. Circuit Court of Appeals, Third Circuit. Feb. 10, 1933. Duell, Dunn & Anderson, of New York City (Daniel H. Kane and Clifford E. Dunn, both of New York City, and George N. Davis, of Wilmington, Del, of counsel), for appellants. Frank H. Borden, of Washington, D. C. (Robert S. Allyn and Edward S. Higgins, both of New York City, of counsel), for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. The two tooth paste patents Nos. 1,222,-144 and 1,225,362 here involved have been discussed at full length and in much detail by the comprehensive opinion ■ of the court below. (D. G.) 53 F.(2d) 215, 216. Having been given such full attention and discussion, as they can fairly ask for, and finding bur-selves in accord with the views of the court below, there is no warrant for this court enlarging the reeord by a further discussion, which would simply he an effort on our part to state in different words what the court below has sufficiently and accurately' so done! The underlying consideration affecting the two patents was to provide a tooth paste that will calcify the teeth and “the ‘gist of the invention is to provide a calcifying dentifrice’ ” which would artificially do what natural saliva does and prevent dental decay. This contention the plaintiff sought by experiment and proof to establish, but, in view of testimony to the contrary, the court below, and we agree therewith, held “that -the nature or extent of the porosity of the teeth, the existence of which is necessary to support plaintiffs’ theory of artificial calcification of the teeth, is in the realm of debatable theory.” That court accepted, and we think rightly, the view of the defendant’s expert, who testified : “I do not consider those tests, as carried out, fair at all, or representative of what happens in the month. They were made Under conditions such as can never obtain in the mouth. In the first place, let me say that these tests were made on dead teeth, and it is admitted that there may be' metabolic changes in the teeth, so that there must be some difference in the teeth when they are dead and out, and the teeth when they, are still in our gums connected with the nerve. ■* * * He added saliva in his weighing experiments from time to time and in that fashion, of course, obtained the reaction which was in no wise representative of any reaction in the mouth. So-1 would say these tests are in no way comparable to anything that takes place in the mouth, and are of no value to determine whether there is any calcifying action or not,” — and held that “a calcifying dentifrice that will not calcify is of no- use. It is inoperable and therefore not useful.” Without going - into further detail, and without reference to other matters 'discussed, we limit ourselves to holding, in accord with the opinion below, that the bill was rightly dismissed. . Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_circuit	L	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. George PAPUCHIS et al., Appellants, v. Honorable John A. BRESNAHAN, Referee in Bankruptcy et al., Appellees. No. 21211. United States Court of Appeals District of Columbia Circuit. Argued Dec. 8, 1967. Decided March 1, 1968. Mr. Karl G. Feissner, Hyattsville, Md., with whom Mr. William L. Kaplan, Hyattsville, Md., was on the brief, for appellants. Mr. Edward L. Genn, Washington, D. C., for appellees. Before Bazelon, Chief Judge, and McGowan and Leventhal, Circuit Judges. PER CURIAM: Appellants, creditors and stockholders of the J & P Distributors, Inc., contend that the Referee in Bankruptcy and the District Court incorrectly denied their motion to intervene in opposition to the bankruptcy proceedings against the above-named corporation. We think appellants have no right to intervene as creditors opposing the petition in bankruptcy. See In re Carden, 118 F.2d 677, 679 (2d Cir.), cert. denied McClave & Co. v. Carden, 314 U.S. 647, 62 S.Ct. 91, 86 L.Ed. 519 (1941). They might have a right to intervene as stockholders if there were substantial grounds .to believe that the J & P Corporation would not adequately contest the bankrupcty proceedings. See Klein v. Nu-Way Shoe Co., 136 F.2d 986, 989 (2d Cir. 1943). But since appellants’ motion to intervene made no such allegation against the corporation, we do not face that issue. Accordingly, we affirm. 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_casetyp1_2-3-2	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "civil rights - voting rights, race discrimination, sex discrimination". Lester R. EVANS, Appellant, v. DAVIE TRUCKERS, INC., Appellee. Lester R. EVANS, Appellee, v. DAVIE TRUCKERS, INC., Appellant. Nos. 84-2042, 84-2068. United States Court of Appeals, Fourth Circuit. Argued May 7, 1985. Decided Aug. 14, 1985. Rehearing and Rehearing En Banc Denied Sept. 9, 1985 in No. 84-2042. Herman L. Stephens, Winston-Salem, N.C. (Badgett, Calaway, Phillips, Davis, Stephens, Peed & Brown, Winston-Salem, N.C., on brief), for appellant. David A. Irvin, Winston-Salem, N.C. (M. Ann Anderson, Womble, Caryle, Sandridge & Rice, Winston-Salem, N.C., on brief), for appellee. Before HALL and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge. K.K. HALL, Circuit Judge: Lester R. Evans, a black male, appeals from an order of the district court dismissing his action- against his former employer, Davie Truckers, Inc. (“Davie Truckers”), brought pursuant to Title VII of the Civil Rights Act of 1964 (the “Act”), 42 U.S.C. § 2000e et seq. Davie Truckers cross-appeals from the district court’s finding that Davie Truckers is an employer within the meaning of § 701(b) of the Act and from the district court’s failure to award Davie Truckers attorneys’ fees. We affirm. I. Evans was employed by Davie Truckers as a truck driver in April 1975. He was hired by Wayne Smith, Davie Truckers’ president and principal owner. Evans was primarily responsible for hauling maltage from a Winston-Salem, North Carolina, company to dairy farmers in North Carolina, South Carolina, and Virginia. At the time of his employment, Evans was informed by Wayne Smith that Evans would be compensated at the rate of twenty-two and one-half percent of the gross profit of each trip. Elaine Smith, Wayne Smith’s wife, co-owns Davie Truckers with her husband. She serves as secretary-treasurer, dispatcher, and payroll clerk. Wayne Smith han-, dies the daily management of the company, including hiring and firing of all the employees. At trial, Evans stated that a number of times during the course of his employment he questioned Wayne Smith concerning his compensation. Evans sought to determine whether he was, in fact, being paid twenty-two and one-half percent of the gross profit for each trip and whether he was being compensated at the same rate as white truck drivers. Evans’ inquiries went unanswered by Smith. On September 4, 1978, Elaine Smith telephoned Evans at home. Mrs. Smith told Evans that “if we need you, we’ll call you.” Evans testified that he did not speak further with Mrs. Smith but interpreted the telephone call to mean that he was fired. The next day, Evans went to the Davie Truckers’ premises, removed his personal belongings from the truck he had been driving, and left without speaking to either of the Smiths. Subsequently, a separation notice which stated that Evans voluntarily quit was given to Evans when he picked up his final paycheck. According to Evans, he objected to the secretary who presented him the notice that he did not voluntarily quit, but he did not speak with the Smiths about the separation notice and had no other contact with them. Thereafter, Evans filed a charge of racial discrimination in employment with the Equal Employment Opportunity Commission (the “EEOC”). The EEOC determined that there was no reasonable cause to believe that discrimination occurred and issued Evans a right to sue letter. Evans then filed this civil rights action, alleging that Davie Truckers discriminated against him on account of his race by paying him less than it paid to whites, and that Davie Truckers unlawfully discharged him for complaining about that discrimination. Evans dropped his claim of disparate pay and proceeded at trial on his claim of retaliatory discharge. The case was tried without a jury. Following the introduction of Evans’ evidence, Davie Truckers moved for dismissal pursuant to Fed.R.Civ.P. 41(b). The trial court found that Davie Truckers did not terminate Evans in retaliation for his complaints about his compensation but that Evans had voluntarily resigned his employment, and it dismissed the action with prejudice. This appeal and cross-appeal followed. II. On appeal, Evans contends that the district court erred in finding that he was not discriminatorily discharged in retaliation for his complaints that he was being compensated at a lower rate than white employees. We disagree. In ruling on Davie Truckers’ motion for dismissal, the district court found that Evans had failed to establish a prima facie case of retaliation. The district court stated that “[although the plaintiff established that he engaged in statutorily protected activity, the plaintiff failed to show that he suffered adverse employment action by the defendant.” The district court concluded that Evans’ evidence “clearly established that he voluntarily resigned his employment with the defendant, and, therefore, suffered no adverse employment action at the hand of the defendant.” Rule 52(a) of the Federal Rules of Civil Procedure provides that a trial court’s “[fjindings of fact shall not be set aside unless clearly erroneous.” The district court’s findings in this case are not clearly erroneous. The evidence adduced at trial was that Davie Truckers dispatched its trucks by telephone calls to the drivers’ homes. The dispatcher commonly called drivers to put them “on call,” i.e., the driver would be called when needed. Mrs. Smith was the dispatcher and was the person who placed Evans on call on September 4, 1978. Additionally, only Wayne Smith hired and fired the truck drivers. Evans did not question the Smiths about the fact that his separation notice stated that he voluntarily quit. All of this evidence supports the district court’s finding that Mrs. Smith’s telephone call to Evans was not a notice of termination but merely informed Evans of his standby status. Under these circumstances, we cannot conclude that the district court’s finding that Evans voluntarily quit was clearly erroneous. See Anderson v. City of Bessemer City, N.C, — U.S.-, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Consequently, Evans is unable to demonstrate that Elaine Smith’s telephone call constituted an adverse employment action — a necessary element to establish a prima facie case of retaliation. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). We, therefore, conclude that the district court did not err in dismissing Evans’ action. Upon consideration of the record, briefs, and oral argument, we also reject Davie Truckers’ contentions on cross-appeal as meritless for the reasons stated by the district court. Evans v. Davie Truckers, Inc., C/A No. 82-1023-WS (M.D.N.C. August 27, 1984). III. On the basis of the foregoing, the judgment below is affirmed. AFFIRMED The district court’s final order held that each party was to bear its own costs. We find no abuse of discretion on the part of the district court in not awarding attorneys’ fees to Davie Truckers. Question: What is the specific issue in the case within the general category of "civil rights - voting rights, race discrimination, sex discrimination"? A. voting rights - reapportionment & districting B. participation rights - rights of candidates or groups to fully participate in the political process; access to ballot C. voting rights - other (includes race discrimination in voting) D. desegregation of schools E. other desegregation F. employment race discrimination - alleged by minority G. other race discrimination - alleged by minority H. employment: race discrimination - alleged by caucasin (or opposition to affirmative action plan which benefits minority) I. other reverse race discrimination claims J. employment: sex discrimination - alleged by woman K. pregnancy discrimination L. other sex discrimination - alleged by woman M. employment: sex discrimination - alleged by man (or opposition to affirmative action plan which benefits women) N. other sex discrimination - alleged by man O. suits raising 42 USC 1983 claims based on race or sex discrimination Answer:
sc_issuearea	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. UNITED STATES v. DiFRANCESCO No. 79-567. Argued October 6, 1980 Decided December 9,1980 Blaokmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, in which White, Marshall, and Stevens,, JJ., joined, post, p. 143. Stevens, J., filed a dissenting opinion, post, p. 152. Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, and Victor D. Stone. Edgar C. DeMoyer argued the cause and filed a brief for respondent. Briefs of amici curiae urging affirmance were filed by Quin Denvir and Laurance S. Smith for the State Public Defender of California; and by Martin Michaelson for the American Civil Liberties Union. Justice Blaokmun delivered the opinion of the Court. The Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, contains, among other things, a definition of “dangerous special offender,” 18 U. S. C. §§ 3575 (e) and (f); authorizes the imposition of an increased sentence upon a convicted dangerous special offender. § 3575 (b); and grants the United States the right, under specified conditions, to take that sentence to the Court of Appeals for review, § 3576. The issue presented by this case is whether § 3576, authorizing the United States so to appeal, violates the Double Jeopardy Clause of the Fifth Amendment of the Constitution. I At a 1977 jury trial in the United States District Court for the Western District of New York, respondent Eugene DiFrancesco was convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, and of conspiring to commit that offense, in violation of 18 U. S. C. §§ 1962 (c) and (d). At another jury trial in 1978 — before a different judge in the same District — based on an indictment returned prior to the racketeering indictment, respondent was convicted of damaging federal property, in violation of 18 U. S. C. § 1361, of unlawfully storing explosive materials, in violation of 18 U. S. C. § 842 (j), and of conspiring to commit those offenses, in violation of 18 U. S. C. § 371. Respondent was first sentenced, in March 1978, on his convictions at the later trial. He received eight years on the charge for damaging federal property and five years on the conspiracy charge, these sentences to be served concurrently, and one year on the unlawful storage charge, to be served consecutively to the other sentences. This made a total of nine years’ imprisonment. In April, respondent was sentenced as a dangerous special offender under § 3575 to two 10-year terms on the racketeering counts upon which he was convicted at the earlier trial; the court specified that these sentences were to be served concurrently with each other and with the sentences imposed in March. The dangerous special offender charge and sentences thus resulted in additional punishment of only about a year. Respondent appealed the respective judgments of conviction to the Court of Appeals for the Second Circuit, and the United States sought review, under § 3576, of the sentences imposed upon respondent as a dangerous special offender. The Court of Appeals unanimously affirmed the judgments of conviction. By a divided vote, however, that court dismissed the Government’s appeal on double jeopardy grounds. 604 F. 2d 769 (1979). The two judges in the majority thus did not address the merits of the special offender issue. The third judge, while agreeing that the Government’s appeal was to be dismissed, based that conclusion not on constitutional grounds, as did the majority, but on the grounds that §§ 3575 and 3576 were inapplicable to the facts of the case. 604 F. 2d, at 787. Because of the importance of the constitutional question, we granted the Government’s petition for certiorari, which confined itself to that single issue. 444 U. S. 1070 (1980). Respondent has not filed a cross-petition. II At the earlier racketeering trial, the evidence showed that respondent was involved in an arson-for-hire scheme in the Rochester, N. Y., area that was responsible for at least eight fires between 1970 and 1973; that the ring collaborated with property owners to set fire to buildings in return for shares of the insurance proceeds; and that insurers were defrauded of approximately $480,000 as a result of these fires. At the second trial, the evidence showed that respondent participated in the 1970 “Columbus Day bombings,” including the bombing of the federal building at Rochester. Prior to the first trial, the Government, in accordance with § 3575 (a), filed with the trial court a notice alleging that respondent was a dangerous special offender. This notice recited the Government’s intention to seek enhanced sentences on the racketeering counts in the event respondent was convicted at that trial. After respondent was found guilty, a dangerous special offender hearing, pursuant to § 3575 (b), was held. At the hearing, the Government relied upon the testimony adduced at the trial and upon public documents that attested to other convictions of respondent for the Columbus Day bombings, for loansharking, and for murder. App. 27-28, 30. The defense offered no evidence. It conceded the validity of the public records, id., at 31-32, but objected to any consideration of the murder offense because that conviction had been vacated on appeal. Id., at 28-29. The District Court made findings of fact and ruled that respondent was a dangerous special offender within the meaning of the statute. The findings set forth respondent’s criminal record and stated that that record revealed “virtually continuous criminal conduct over the past eight years, interrupted only by relatively brief periods of imprisonment in 1975, 1976 and 1977.” Id., at 41. The court found, in addition, that respondent’s “criminal history, based upon proven facts, reveals a pattern of habitual and knowing criminal conduct of the most violent and dangerous nature against the lives and property of the citizens of this community. It further shows the defendant’s complete and utter disregard for the public safety. The defendant, by virtue of his own criminal record, has shown himself to be a hardened habitual criminal from whom the public must be protected for as long a period as possible. Only in that way can the public be protected from further violent and dangerous criminal conduct by the defendant.” Id., at 43. The court thereupon sentenced respondent under § 3575 (b) to the concurrent 10-year terms hereinabove described. App. 45^46. The United States then took its appeal under § 3576, claiming that the District Court abused its discretion in imposing sentences that amounted to additional imprisonment of respondent for only one year, in the face of the findings the court made after the dangerous special offender hearing. The dismissal of the Government’s appeal by the Court of Appeals rested specifically upon its conclusion, which it described as “inescapable,” that “to subject a defendant to the risk of substitution of a greater sentence, upon an appeal by the government, is to place him a second time fin jeopardy of life or limb.’ ” 604 F. 2d, at 783. Ill While this Court, so far as we are able to ascertain, has never invalidated an Act of Congress on double jeopardy grounds, it has had frequent occasion recently to consider and pass upon double jeopardy claims raised in various contexts. See United States v. Jorn, 400 U. S. 470 (1971); Colten v. Kentucky, 407 U. S. 104 (1972); Illinois v. Somerville, 410 U. S. 458 (1973); Chaffin v. Stynchcombe, 412 U. S. 17 (1973); United States v. Wilson, 420 U. S. 332 (1975); United States v. Jenkins, 420 U. S. 358 (1975); Serfass v. United States, 420 U. S. 377 (1975); Breed v. Jones, 421 U. S. 519 (1975); United States v. Dinits, 424 U. S. 600 (1976); Ludwig v. Massachusetts, 427 U. S. 618 (1976); United States v. Martin Linen Supply Co., 430 U. S. 564 (1977); Lee v. United States, 432 U. S. 23 (1977); Arizona v. Washington, 434 U. S. 497 (1978); Burks v. United States, 437 U. S. 1 (1978); Greene v. Massey, 437 U. S. 19 (1978); Crist v. Brets, 437 U. S. 28 (1978); Sanabria v. United States, 437 U. S. 54 (1978); United States v. Scott, 437 U. S. 82 (1978); Swisher v. Brady, 438 U. S. 204 (1978); Whalen v. United States, 445 U. S. 684 (1980); Illinois v. Vitale, 447 U. S. 410 (1980). These cited cases are the additions of just the past decade to the less numerous list of well-known double jeopardy decisions of past years. Among those earlier cases are United States v. Perez, 9 Wheat. 579 (1824); Ex parte Lange, 18 Wall. 163 (1874), United States v. Ball, 163 U. S. 662 (1896) ; Kepner v. United States, 195 U. S. 100 (1904); Green v. United States, 355 U. S. 184 (1957); Fong Foo v. United States, 369 U. S. 141 (1962); Downwn v. United States, 372 U. S. 734 (1963); United States v. Tateo, 377 U. S. 463 (1964). That the Clause is important and vital in this day is demonstrated by the host of recent cases. That its application has not proved to be facile or routine is demonstrated by acknowledged changes in direction or in emphasis. See, e. g., United States v. Scott, supra, overruling United States v. Jenkins, supra; and Burks v. United States, 437 U. S., at 18, overruling, at least in part, certain prior cases in the area. See also Note, 24 Minn. L. Rev. 522 (1940); Westen & Drubel, Toward a General Theory of Double Jeopardy, 1978 S. Ct. Rev. 81, 82. Nonetheless, the following general principles emerge from the Court’s double jeopardy decisions and may be regarded as essentially settled: —The general design of the Double Jeopardy Clause of the Fifth Amendment is that described in Green v. United States: “The constitutional prohibition against 'double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” 355 U. S., at 187-188. See also Serf ass v. United States, 420 U. S., at 387-388; Crist v. Bretz, 437 U. S., at 35. This concept has ancient roots centering in the common-law pleas of autre fois acquit, autre fois convict, and pardon, 4 W. Blackstone, Commentaries 329-330 (1st ed. 1769), and found expression in the legal tradition of colonial America. See Green v. United States, 355 U. S., at 187; id., at 200 (dissenting opinion); United States v. Wilson, 420 U. S., at 339-342; United States v. Scott, 437 U. S., at 87. —The stated design, in terms of specific purpose, has been expressed in various ways. It has been said that “a” or “the” “primary purpose” of the Clause was “to preserve the finality of judgments,” Crist v. Bretz, 437 U. S., at 33, or the “integrity” of judgments, United States v. Scott, 437 U. S., at 92. But it has also been said that “central to the objective of the prohibition against successive trials” is the barrier to “affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U. S., at 11; Swisher v. Brady, 438 U. S., at 215-216. Implicit in this is the thought that if the Government may reprosecute, it gains an advantage from what it learns at the first trial about the strengths of the defense case and the weaknesses of its own. See United States v. Scott, 437 U. S., at 105, n. 4 (dissenting opinion); United States v. Wilson, 420 U. S., at 352. Still another consideration has been noted: “Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant’s Valued right to have his trial completed by a particular tribunal.’ ” Arizona v. Washington, 434 U. S., at 503, quoting from Wade v. Hunter, 336 TJ. S. 684, 689 (1949). See Swisher v. Brady, 438 U. S., at 214-215; Crist v. Bretz, 437 U. S., at 36. On occasion, stress has been placed upon punishment: “It is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution.” Ex parte Lange, 18 Wall., at 173. —The Court has summarized: “That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Footnotes omitted.) North Carolina v. Pearce, 395 U. S. 711, 717 (1969). See Illinois v. Vitale, 447 U. S., at 415. —An acquittal is accorded special weight. “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal,” for the “public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though ‘the acquittal was based upon an egregiously erroneous foundation.’ See Fong Foo v. United States, 369 U. S. 141, 143. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.” Arizona v. Washington, 434 U. S., at 503. The law “attaches particular significance to an acquittal.” United States v. Scott, 437 U. S., at 91. This is justified on the ground that, however mistaken the acquittal may have been, there would be an unacceptably high risk that the Government, with its superior resources, would wear down a defendant, thereby “enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S., at 188. See also United States v. Martin Linen Supply Co., 430 U. S., at 571, 573, n. 12. “[W]e necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision” (emphasis in original). Burks v. United States, 437 U. S., at 16. —The result is definitely otherwise in cases where the trial has not ended in an acquittal. This Court has long recognized that the Government may bring a second prosecution where a mistrial has been occasioned by “manifest necessity.” United States v. Perez, 9 Wheat, at 580. See Arizona v. Washington, 434 U. S., at 514-516; Illinois v. Somerville, 410 U. S. 458 (1973). Furthermore, reprosecution of a defendant who has successfully moved for a mistrial is not barred, so long as the Government did not deliberately seek to provoke the mistrial request. United States v. Dinitz, 424 U. S., at 606-611. Similarly, where the trial has been terminated prior to a jury verdict at the defendant’s request on grounds unrelated to guilt or innocence, the Government may seek appellate review of that decision even though a second trial would be necessitated by a reversal. See United States v. Scott, 437 U. S., at 98-99. A fortiori, the Double Jeopardy Clause does not bar a Government appeal from a ruling in favor of the defendant after a guilty verdict has been entered by the trier of fact. See United States v. Wilson, supra; United States v. Rojas, 554 F. 2d 938, 941 (CA9 1977); United States v. De Garces, 518 F. 2d 1156, 1159 (CA2 1975). Finally, if the first trial has ended in a conviction, the double jeopardy guarantee “imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside” (emphasis in original). North Carolina v. Pearce, 395 U. S., at 720. “It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Toteo, 377 U. S., at 466. “[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.” United States v. Scott, 437 U. S., at 91. There is, however, one exception to this rule: the Double Jeopardy Clause prohibits retrial after a conviction has been reversed because of insufficiency of the evidence. Burks v. United States, supra; Greene v. Massey, 437 U. S., at 24. . —Where the Clause does apply, “its sweep is absolute.” Burks v. United States, 437 TJ. S., at 11, n. 6. —The United States “has no right of appeal in a criminal case, absent explicit statutory authority.” United States v. Scott, 437 U. S., at 84-85. But with the enactment of the first paragraph of what is now 18 U. S. C. § 3731 by Pub. L. 91-644 in 1971, 84 Stat. 1890, permitting a Government appeal in a criminal case except “where the double jeopardy clause of the United States Constitution prohibits further prosecution,” the Court necessarily concluded that “Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.” United States v. Wilson, 420 U. S., at 337. See also United States v. Scott, 437 U. S., at 85. IV From these principles, certain propositions pertinent to the present controversy emerge: A. The Double Jeopardy Clause is not a complete barrier to an appeal by the prosecution in a criminal case. “[W]here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” United States v. Martin Linen Supply Co., 430 U. S., at 569-570. See also United States v. Wilson, 420 U. S., at 342; United States v. Scott, supra. From this it follows that the Government’s taking a review of respondent’s sentence does not in itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence. Indeed, in Wilson and again in Scott the defendant had won a total victory in the trial court, for that tribunal had terminated the case in a manner that would have allowed him to go free. The Government, nevertheless, over the constitutional challenge, was allowed to appeal. B. The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation. As has been noted above, the Court has said that the prohibition against multiple trials is the “controlling constitutional principle.” United States v. Wilson, 420 U. S., at 346; United States v. Martin Linen Supply Co., 430 U. S., at 569. But, of course, the Court’s cases show that even the protection against retrial is not absolute. It is acquittal that prevents retrial even if legal error was committed at the trial. United States v. Ball, 163 U. S. 662 (1896). This is why the “law attaches particular significance to an acquittal.” United States v. Scott, 437 U. S., at 91. Appeal of a sentence, therefore, would seem to be a violation of double jeopardy only if the original sentence, as pronounced, is to be treated in the same way as an acquittal is treated, and the appeal is to be treated in the same way as a retrial. Put another way, the argument would be that, for double jeopardy finality purposes, the imposition of the sentence is an “implied acquittal” of any greater sentence. See Van Alstyne, In Gideon’s Wake: Harsher Penalties and the “Successful” Criminal Appellant, 74 Yale L. J. 606, 634-635 (1965). We agree with the Government that this approach does not withstand analysis. Any reliance the Court of Appeals may have placed on Kepner v. United States, 195 U. S. 100 (1904), is misplaced, for the focus of Kepner was on the undesirability of a second trial. There are, furthermore, fundamental distinctions between a sentence and an acquittal, and to fail to recognize them is to ignore the particular significance of an acquittal. Historically, the pronouncement of sentence has never carried the finality that attaches to an acquittal. The common-law writs of autre fois acquit and autre fois convict were protections against retrial. See United States v. Wilson, 420 U. S., at 340. Although the distinction was not of great importance early in the English common law because nearly all felonies, to which double jeopardy principles originally were limited, were punishable by the critical sentences of death or deportation, see Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L. J. 339, 342-343 (1956), it gained importance when sentences of imprisonment became common. The trial court’s increase of a sentence, so long as it took place during the same term of court, was permitted. This practice was not thought to violate any double jeopardy principle. See Ex parte Lange, 18 Wall., at 167; id., at 192-194 (dissenting opinion); 3 E. Coke, Institutes §438 (13th ed. 1789). See also Commonwealth v. Weymouth, 84 Mass. 144 (1861). The common law is important in the present context, for our Double Jeopardy Clause was drafted with the common-law protections in mind. See United States v. Wilson, 420 U. S., at 340-342; Green v. United States, 355 U. S., at 200-201 (dissenting opinion). This accounts for the established practice in the federal courts that the sentencing judge may recall the defendant and increase his sentence, at least (and we venture no comment as to this limitation) so long as he has not yet begun to serve that sentence. See, e. g., United States v. DiLorenzo, 429 F. 2d 216, 221 (CA2 1970), cert. denied, 402 U. S. 950 (1971); Vincent v. United States, 337 F. 2d 891, 894 (CA8 1964), cert. denied, 380 U. S. 988 (1965). Thus it may be said with certainty that history demonstrates that the common law never ascribed such finality to a sentence as would prevent a legislative body from authorizing its appeal by the prosecution. Indeed, countries that trace their legal systems to the English common law permit such appeals. See Can. Rev. Stat. §§605 (1)(b) and 748 (b) (ii) (1970), Martin’s Annual Criminal Code 523, 636 (E. Greenspan ed. 1979); New Zealand Crimes Act 1961, as amended by the Crimes Amendment Act of 1966, 1 Repr. Stat. N. Z. § 383 (2) (1979). See M. Friedland, Double Jeopardy 290 (1969). C. This Court’s decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal. In Bozza v. United States, 330 U. S. 160 (1947), the defendant was convicted of a crime carrying a mandatory minimum sentence of fine and imprisonment. The trial court, however, sentenced the defendant only to imprisonment. Later on the same day, the judge recalled the defendant and imposed both fine and imprisonment. This Court held that there was no double jeopardy. “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Id., at 166-167. What the judge had done “did not twice put petitioner in jeopardy for the same offense.” Id., at 167. And in North Carolina v. Pearce, 395 U. S. 711 (1969), the Court held that there was no absolute constitutional bar to the imposition of a more severe sentence on reconviction after the defendant’s successful appeal of the original judgment of conviction. The rule of Pearce, permitting an increase of sentence on retrial is a “well-established part of our constitutional jurisprudence.” Id., at 720. See Chaffin v. Stynchcombe, 412 U. S., at 24. See also Stroud v. United States, 251 U. S. 15 (1919). If any rule of finality had applied to the pronouncement of a sentence, the original sentence in Pearce would have served as a ceiling on the one imposed at retrial. While Pearce dealt with the imposition of a new sentence after retrial rather than, as here, after appeal, that difference is no more than a “conceptual nicety.” North Carolina v. Pearce, 395 U. S., at 722. D. The double jeopardy considerations that bar reprosecution after an acquittal do not prohibit review of a sentence. We have noted above the basic design of the double jeopardy provision, that is, as a bar against 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. Under § 3576, the appeal is to be taken promptly and is essentially on the record of the sentencing court. The defendant, of course, is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired. To be sure, the appeal may- prolong the period of any anxiety that may exist, but it does so only for the finite period provided by the statute. The appeal is no more of an ordeal than any Government appeal under 18 U. S. C. § 3731 from the dismissal of an indictment or information. The defendant’s primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him. The defendant is subject to no risk of being harassed and then convicted, although innocent. Furthermore, a sentence is characteristically determined in large part on the basis of information, such as the presentence report, developed outside the courtroom. It is purely a judicial determination, and much that goes into it is the result of inquiry that is nonadversary in nature. E. The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be. Congress has established many types of criminal sanctions under which the defendant is unaware of the precise extent of his punishment for significant periods of time, ,or even for life, yet these sanctions have not been considered to be viola-tive of the Clause. Thus, there is no double jeopardy protection against revocation of probation and the imposition of imprisonment. See, e. g., Thomas v. United States, 327 F. 2d 795 (CA10), cert. denied, 377 U. S. 1000 (1964). There are other situations where probation or parole may be revoked and sentence of imprisonment imposed. See, e. g., United States v. Kuck, 573 F. 2d 25 (CA10 1978); United States v. Walden, 578 F. 2d 966, 972 (CA3 1978), cert. denied, 444 U. S. 849 (1979); United States v. Jones, 540 F. 2d 465 (CA10 1976), cert. denied, 429 U. S. 1101 (1977).; Dunn v. United States, 182 U. S. App. D. C. 261, 561 F. 2d 259 (1977). While these criminal sanctions do not involve the increase of a final sentence, and while the defendant is aware at the original sentencing that a term of imprisonment later may be imposed, the situation before us is different in no critical respect. Respondent was similarly aware that a dangerous special offender sentence is subject to increase on appeal. His legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked. All this highlights the distinction between acquittals and sentences. North Carolina v. Pearce and Bozza v. United States demonstrate that the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase. Because of the critical difference between an acquittal and a sentence, the acquittal cases, such as Kepner v. United States, 195 U. S. 100 (1904), and Fong Foo v. United States, 369 U. S. 141 (1962), do not require a contrary result. V We turn to the question whether the increase of a sentence on review under § 3576 constitutes multiple punishment in violation of the Double Jeopardy Clause. The Court of Appeals found that it did. 604 F. 2d, at 784r-787. This conclusion appears to be attributable primarily to that court’s extending to an appeal this Court’s dictum in United States v. Benz, 282 U. S. 304, 307 (19 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_typeiss	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. MANHATTAN-BRONX POSTAL UNION et al., Appellants, v. John. A. GRONOUSKI, individually and as Postmaster General of the United States, Appellee. No. 18882. United States Court of Appeals District of Columbia Circuit. Argued March 16, 1965. Decided July 29, 1965. Mr. Roy C. Frank, Washington, D. C., for appellants. Mr. Jerome Nelson, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Mrs. Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellee. Before Wilbur K. Miller, Senior Circuit Judge, and Danaher and McGowan, Circuit Judges. McGOWAN, Circuit Judge. Appellants sought declaratory and in-junctive relief in the District Court against appellee, the Postmaster General of the United States. Appellant Manhattan-Bronx Postal Union is an affiliate of the National Postal Union, a labor organization representing postal employees. Appellant Petre is a postal employee and a member of Manhattan-Bronx. They complain of appellee’s refusal to recognize Manhattan-Bronx as the exclusive representative of certain employees in the New York City post office. This refusal is claimed to have been founded upon an arbitrary, capricious, and unlawful act by appellee in contravention of the terms of an Executive Order. We affirm the District Court’s dismissal of the suit. I Executive Order 10988, issued January 18, 1962, 27 Fed.Reg. 551, grew out of the report of the President’s Task Force on Employee-Management Relations in the Federal Service. That report recognized the frustrations that not infrequently assail federal employees as they observe the organizational activities of workers in private industry and what they assume to be the correspondingly greater role of the latter in the shaping of employment policies. Although the complete assimilation of the one type of employment to the other was thought to be impossible, the Order was intended to provide a framework for the collective expression by federal employees of their views about the terms and conditions of their employment. This was a project of the Executive, and not of the Congress. Executive Order 10988 does not, in its recitals, refer to any statute other than the Act of March 3, 1871, 5 U.S.C. § 631, which generally authorizes the President to issue regulations for the admission of persons into the civil service of the United States and for the governance of their conduct thereafter. The President, thus, was under no obligation to issue the Order; and his action in doing so was simply in furtherance of a personal policy of trying to enhance the attractiveness and efficiency of federal employment. In the Order the President designated levels of recognition status for employee organizations — informal, formal, and exclusive. To achieve recognition as the exclusive representative of a particular unit, the Order provided that an organization must have been “designated or selected by a majority of the employees of such unit.” The Order elsewhere directed the head of each agency, not later than July 1, 1962, to issue appropriate rules and regulations for its implementation, including “policies and procedures with respect to recognition of employee organizations” for purposes of exclusive recognition. The Civil Service Commission was expressly adjured to “establish and maintain a program to assist in carrying out the objectives of this order,” and to furnish guidance and advice to the agencies. Lastly, the Order established a Temporary Committee on the Implementation of the Federal-Employee Management Eelations Program, chaired by the Secretary of Labor and with the Secretary of Defense, the Postmaster General, and the head of the Civil Service Commission as the other members. The function of this Committee was to advise the President on the working of the program and to be generally helpful in its implementation. It was this Committee which first formally recommended the rule of which appellants now complain. In response to a request for advice upon whether exclusive recognition should require an absolute majority of employees eligible to vote, or a simple majority of those actually voting, the Committee recommended that the agencies uniformly require that, where less than an absolute majority vote for one organization was cast, there be a majority of those voting in a “representative election”; and it defined the latter as one in which a minimum of 60 per cent of the eligible voters actually voted. It contemplated that, in special cases, an agency might determine that “a percentage slightly less than 60% is representative.” The Civil Service Commission, on April 24, 1962, transmitted this advice to all the agencies with its endorsement. On May 25 following, the Post Office Department issued a Postal Bulletin, to be displayed on employee bulletin boards and elsewhere, announcing and explaining the 60 per cent rule. Appellants initiated this litigation against the Postmaster General in respect of the New York City unit on January 7, 1964. A principal complaint was that the use of an authorization card system was unfair. After the filing of a Supplemental and Amended Complaint, the parties stipulated that an election by secret ballot would be held. In this selection, only 57.07 per cent of the eligible voters voted, of which Manhattan-Bronx received a majority. Accordingly, appel-lee denied Manhattan-Bronx exclusive recognition, refusing to waive the 60 per cent rule in this instance because only 13 of some 6500 ballot kits had been returned as undeliverable, suggesting that many employees had deliberately refrained from voting. A further Supplemental Complaint filed by appellants attacked this denial of exclusive representational status and asked the court to declare Manhattan-Bronx to be the exclusive representative of the unit, and, in effect, to enjoin appellee from taking any action inconsistent with that status. Appellee filed a motion for summary judgment, accompanied by certain documentary materials. When that motion came on to be heard in open court, it was stipulated by the parties that (1) the motion might be considered alternatively as a motion to dismiss, and (2) summary judgment could be entered for appellants if the court found in their favor. The order thereafter entered by the court alternatively dismissed the action for lack of jurisdiction over the subject matter, and awarded summary judgment to appellee. II While appellants’ claim on the merits appears to raise only the issue of whether appellee’s adherence to the 60 per cent rule transgressed the President’s Order and was, thus, unlawful, arbitrary, and capricious, we need not reach the trial court’s alternative resolution of that question. We affirm instead its dismissal of the complaint, on two grounds. Appellants’ suit, in effect, is one against the United States, which cannot be maintained without its consent. Moreover, the right they seek to assert in this instance is not, in our view, appropriate for judicial vindication. The Supreme Court has made clear that a plaintiff’s denomination of the party defendant is not the test of whether the suit is in fact against the United States. Many cases, both before and since Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), have recognized that “the crucial question is whether the relief sought in a suit nominally addressed to the officer is relief against the sovereign.” 337 U.S. at 687, 69 S.Ct. at 1460. A suit is against the United States if the judgment sought would require the payment of public funds or entail the transfer of public lands, or if it would intei’fere with the public administration by either restraining the Government from acting or requiring it to act. See Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Seiden v. Larson, 88 U.S.App.D.C. 258, 188 F.2d 661, cert. denied, 341 U.S. 950, 71 S.Ct. 1017, 95 L.Ed. 1373 (1951). The decree requested by appellants would declare Manhattan-Bronx to be the exclusive representative of the postal employees in the New York City unit, and is no doubt intended to impose upon the Postmaster General the obligation of treating it as such. Appellants also seek permanently to prevent appellee, “his agents, employees and attorneys,” from: (a) Decertifying plaintiff, Manhattan-Bronx, as the exclusive representative of the mail handlers unit at the New York post office. (b) Certifying that plaintiff, Manhattan-Bronx, was not designated by the employees of the mail handlers unit at the New York post office as the exclusive representative of said unit, effective as of July 4, 1964. (c) Certifying Local No. 1 and plaintiff, Manhattan-Bronx as entitled to formal recognition of the mail handlers unit at the New York post office. That there may be circumstances in which specific relief against an officer is not relief against the United States is, of course, no less well-recognized. See Larson v. Domestic and Foreign Commerce Corp., supra, 337 U.S. at 689-690, 69 S.Ct. 1457; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912). But such circumstances are not present here. Appellants do not contend that either appellee’s assumption of authority to accord recognition to the representatives of employees within the Post Office Department, or his exercise thereof in this instance, violated any provision of the Constitution. See Du-gan v. Rank, supra. They do claim that his adoption of and adherence to the 60 per cent rule is “in violation of” Executive Order No. 10988. But, even if true, this would not in our view establish that appellee’s actions were clearly beyond his legal authority. The Postmaster General’s responsibility for the administration of Government employment policies and regulations within his department is unquestioned. By the terms of the order, he, ‘like the heads of other agencies, was, in his administration of the Post Office Department, directed to carry out the policies therein expressed. He was instructed to adopt appropriate regulations and procedures to achieve that purpose. Presumably the President foresaw that such regulations and procedures should not be uniform throughout the Government, for he left their formulation and adoption to the heads of the various agencies. It would thus appear that the President intended to allow his subordinates some considerable flexibility in the implementation of his objective. Appellants maintain, however, that the area of appellee’s allowable discretion did not extend to the adoption of Section 6(a) of the Order, set forth in the 60 per cent rule. They contend that the margin, requires appellee to designate, as the exclusive representative of a unit, any organization that receives a majority of the votes cast in an election in which a majority of the members of the unit vote. Thus, they say, appellee’s failure to do so in this instance violated the terms of the Order and was in excess of his authority. But, whatever the construction given it in other contexts, the language of Section 6(a) on its face does not immediately suggest the reading appellants urge that it compels. The President may have intended his subordinates to follow the assertedly familiar construction of this language, but neither the circumstances of his issuance of the Order, nor the report of the Temporary Committee, makes this conclusion inescapable. The short of appellants’ case is that appellee has misconstrued the President’s instructions, and the law is clear that an officer of the United States does not act outside his authority whenever he acts upon an erroneous decision of law or fact, if he'is empowered to make the decision. See Larson v. Domestic and Foreign Commerce Corp., supra, 337 U.S. at 695, 703, 69 S.Ct. 1457; Arizona ex rel. Arizona State Bd. of Public Welfare v. Hobby, 94 U.S.App.D.C. 170, 221 F.2d 498 (1954); Seiden v. Larson, supra, 88 U.S.App.D.C. at 263, 188 F.2d at 666. Ill Appellants’ claim that jurisdiction does exist rests primarily upon the general equity powers of the District Court. 11 D.C.Code § 306 (1961 ed.). Those powers have on occasion in the past been successfully invoked to secure relief against various representatives of the federal establishment. But it has been commonly recognized that, in order to avoid the rock of sovereign immunity, on the one hand, and to maintain a reasonably acute sensitivity to the fundamental implications of the .separation of powers, on the other, the occasion must be a compelling one. Executive Order 10988 represents in essence a formulation of broad policy by the President for the guidance of federal employing agencies. It had no specific foundation in Congressional action, nor was it required to effectuate any statute. It could have been withdrawn at any time for any or no reason. It represented simply one President’s effort to move in the direction of what he had been advised by his experts would be an improvement in the efficiency of federal employment. As we have indicated, he imposed no hard and fast directives on the many different kinds of federal employees; and he left large areas for the exercise of discretion at levels below the summit, although he went to some pains to provide continuing advisory services from those people and agencies within his Administration equipped with special knowledge or experience in personnel matters. The President did not undertake to create any role for the judiciary in the implementation of this policy. The question of his power to do so aside, he was, at least in this matter of determining representational rights, emulating the example of Congress, which has shown a marked disinclination to intrude equity courts into this process. The Postmaster General decided to follow the advice of the President’s Temporary Committee, and to apply the 60 per cent rule as a means of assuring the representative character of an election to determine whether one organization should have the exclusive right to represent all the employees in the unit. That action does not seem to us to conflict with the Executive Order. But, even if it did, it does not follow that appellants have a right of such nature as to warrant intervention by an equity court. If appellants disagreed with the Postmaster General’s decision as to this aspect of personnel policy, and believed it to be contrary to the President’s wishes, it is obvious to whom their complaint should have been directed. It was not to the judicial branch. Congress has given the District Court many important functions to perform, but they do not include policing the faithful execution of Presidential policies by Presidential appointees. The dismissal of the action is Affirmed. . Under tlie terms of the Order, “informal” recognition is extended to any organization of employees. This entitles such organization to submit its views from time to time on any matter of concern to its members, but it need not be con-sultect. “Formal” recognition is to be had when no other organization in the unit has achieved exclusive rights, and when not less than 10% of the employees m the unit are members. It entitles the organization not only to volunteer its views, but also to be consulted about personnel policies and practices, and about working conditions of concern to its members. “Exclusive” recognition means that the organization may negotiate agreements covering all employees in the unit. . The material portions of appellants' prayer for relief are set out at page 454. infra. . See, e.g., State of Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Wells v. Roper, 246 U.S. 335, 38 S.Ct. 317, 62 L.Ed. 755 (1918); State of Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954 (1902). . In the language of the Supreme Court, the exceptions to the general rule of immunity are: “(1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void.” Dugan v. Rank, supra, 372 U.S. at 621-622, 83 S.Ct. at 1007. See also Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Doehla Greeting Cards, Inc. v. Summerfield, 97 U.S.App.D.C. 29, 227 F.2d 44 (1955); Fay v. Miller, 87 U.S.App.D.C. 168, 183 F.2d 986 (1950). . See Larson v. Domestic and Foreign Commerce Corp., supra, 337 U.S. 689-690, 69 S.Ct. 1461: [Wlliere the officer’s powers are limited by statute, Ms actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign lias forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer’s lack of delegated power. A claim of error in the exercise of that poioer is therefore not sufficient. [Emphasis added.] Executive Order No. 10988, Section 6(a), provides in pertinent part as follows: An agency shall recognize an employee organization as the exclusive representative of the employees, in an appropriate unit when such organization is eligible for formal recognition pursuant to section 5 of this order, and has been designated or selected hy a majority of the employees of such unit as the representative of such em ployees in such unit. [Emphasis added.] . Appellants point out that substantial!} identical language in Section 9(a) of the National Labor Relations Act, 49 Stat. 453 (1935), as amended, 29 U.S.C. § 159 (a), and in the Railway Labor Act, 44 Stat. 577 (1926), as amended, 45 U.S.C. § 152, has been judicially construed as they urge Section 6(a) must be. See NLRB v. Whittier Mills Co., 111 F.2d 474 (5th Cir. 1940); Virginia Ry. Co. v. System Federation No. 40, Ry. Employees, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). . See, e.g., United States ex rel. Greathouse v. Dern, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250 (1933); Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394 (1925); Mitchell v. McNamara, No. 19,132, Decided July 6, 1965; Pauling v. McNamara, 118 U.S.App.D.C. 50, 331 F.2d 796 (1963), cert. denied, 377 U.S. 933, 84 S.Ct. 1336, 12 L.Ed.2d 297 (1964). . See Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943); Local 130, Int’l Union of Elec., Radio and Mach. Workers v. McCulloch, 120 U.S.App.D.C. -, 345 F.2d 90 (1965). This is not a case where judicial review is required by the Constitution, see Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 90 L.Ed. 567 (1946), nor in which the absence of a judicial forum would mean “a sacrifice or obliteration of a right which Congress had created.” (Emphasis added.) Switchmen’s Union of North America v. National Mediation Board, supra, 320 U.S. at 300, 64 S.Ct. 95, 97; see Leedom v. Kyne, 358 U.S 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). . We note in this regard that the Chairman of the Temporary Committee which recommended the 60% rule in the first instance was the same Secretary of Labor who had served as Chairman of the Task Force which gave rise to the Executive Order. Apart from the broad flexibility which characterizes that Order generally, it hardly seems likely that the Temporary Committee would have deliberately flouted its terms. The record also shows that, even before the Temporary Committee’s advice on the 60% rule was circulated, the head of the national union with which Manhattan-Bronx is affiliated had, in a conversation with an Assistant Postmaster General, signified his understanding that the percentage figures used in the Order to determine status “relate to the total number of enrployees eligible to vote in a unit and not to the number of votes actually cast.” (Emphasis in original.) Thus, the construction of the Order now pressed by appellants may hardly be thought to have been generally regarded as compelled by the words used, Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_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. SOUTHWESTERN TOOL CO. et al. v. HUGHES TOOL CO. No. 1625. Circuit Court of Appeals, Tenth Circuit. July 1, 1938. Arthur C. Brown, of Kansas City, Mo. (Herbert K. Hyde, of Oklahoma City, Okl., on the brief), for .appellants. George I. Haight, of Chicago, 111. (Jesse R. Stone, of Houston, Tex., and B. A. Ames, of Oklahoma City, Okl., on the brief), for appellee. Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges. BRATTON, Circuit Judge. This is an action instituted by Hughes Tool Company against Southwestern Tool Company and Emil Dufek for infringement of three patents. Reference will be made to the parties as they were denominated in, the trial court. Plaintiff alleged in conventional manner that it owned letters patent Number 1,320,384 issued to Louis A. God-bold and Harold W. Fletcher in 1919, letters patent Number 1,480,014 issued to Floyd L. Scott in 1924, and letters patent Number 1,647,753 issued to F. L. Scott and L. H. Wellensiek in 1927; and that defendants Had infringed each and all of them. The defenses pleaded in the answer were invalidity, noninfringement, laches and estoppel ; but invalidity was expressly waived at the trial. The court found that claims 3 and 4 of the first patent, claims 1, 2, 3, and 4 of the second, and claims 2, 3, 4, and 5 of the third were valid; and that defendants had infringed them. Decree was entered enjoining further infringement, and referring the cause to a master for accounting on the question of gains and profits. Defendants appealed. Each of the patents relates to conical cutters for rotary drills in drilling oil- and gas wells. The first is entitled “Drill-Cutter”, and recites that it is designed as an improvement upon a patent issued to Hughes in 1910. Drill bits of the kind involved here consist of a bit head having a threaded shaft or spindle integral therewith, on which a plurality of conical shaped cutters are mounted to rotate on the surface at the bottom of the hole in drilling operations. The cutter consists of a bushing threaded on the inside and having a seat or shoulder at its top, a retaining ring threaded on its outer periphery and having a lateral hole, and a cone shaped toothed cutter shell threaded on the inside at the base. Prior to the advent of the patent the parts were assembled and disassembled in the field, each being attached or detached separately. In assembling, the retaining ring was first positioned in the seat or shoulder on the bushing, and the bushing was then threaded upon the shaft. The cutter shell was then positioned on the bushing and threaded into engagement with the retaining ring. In disassembling the inverse order was followed. The method was inefficient in that the bushing was exposed to dirt or water containing grit and mud. The invention of the patent is directed to the assembly of the three parts as a unit upon the shaft, and to the removal of them as a unit. It discloses holes in the cutter shell, retaining ring, and bushing, in alignment. The bushing is inserted withiss the recess in the cutter shell; the retaining ring is then positioned on the shoulder of the bushing and threaded into the cutter shell. A pin or wrench is then inserted through the aligned holes in the cutter shell and retaining ring, and into the hole in the bushing. The three parts are thus held together and mounted for operation by means of the bushing being threaded upon the shaft. The pin or wrench is then withdrawn and the holes are closed by a set screw or locking pin inserted through the opening in the cutter shell and threaded within the hole in the retaining ring, thus holding the cutter shell and retaining ring rigidly together and permitting their rotation around the bushing. The method disclosed in the patent enables assembly in the shop and ready mounting of the three parts as a unit, also dismounting as a unit and disassembly in the shop. The second patent is entitled “Self-Cleaning Roller Drill”, and is directed to the formation of the teeth upon each cutter. It discloses an arrangement and spacing of teeth in such manner that when the cutters are mounted on the shaft the teeth will interfit without contact with each other, and will clear each other of material having a tendency to gather and adhere to them. The first and second patents were under consideration in Hughes Tool Co. v. International Supply Co., 10 Cir., 47 F.2d 490, the court holding that the two claims in the first were valid and infringed, and that the four in the second were not infringed. The third patent is likewise directed to the formation of the teeth on the cones. It discloses teeth arranged in circumferential rows with apparent parallel sides, the teeth on one cutter being distanced slightly different from the base of the cone than those on the other, and the spaces between the teeth being cut deep to provide long, narrow, penetrating teeth, referred to as chisels. The advantages claimed for the construction are assistance in the rotation of the cutter and more effective penetration of the teeth. The teeth wear rapidly during operation, the degree of rapidity depending upon the kind of formation being penetrated. A cone lasts from eight to forty-eight hours, the average life being from twelve to fifteen hours. Until shortly before the institution of this suit plaintiff sold complete bits including the cones without restriction or reservation in respect to replacement of cones; and it sold cones or cutters separately for use in replacements. In most instances deteriorated cones were replaced with new ones, but in some rebuilt or restored cones were used, and plaintiff rebuilt and restored cones for sale as such replacements. The offending acts of infringement upon which the decree rests consist of purchasing worn out cones from drillers and junk dealers, rebuilding or restoring the teeth, sometimes furnishing new bushings and new retaining rings, and then selling them back to customers of plaintiff for reuse in connection with the bit heads originally purchased from plaintiff. The finding of infringement is challenged on the ground that the patents embrace a combination of elements, all of which are deemed in law to be material; and that defendants do not employ all of them or their mechanical equivalent. As we understand it, the argument is that a cone consists of four elements — the bushing, the cutter shell, the retaining ring, and the device for holding the three together while the unit is being attached to or detached from the shaft; and that defendants do not use or employ the last one. The contention cannot be sanctioned. The cone consists of three constituent elements. They are the bushing, the toothed cutter, and the retaining ring; and defendants use all of them. The device for holding them together as a unit for attachment or detachment is merely a wrench or tool, not a constituent element of the device. But it would be of no avail to defendants to regard the wrench or tool as an element. They purchase worn out and discarded cones from contractors and junk dealers, take them to their shop, burn material from the face of the cutter down to surface, add new metal on the face by welding, cut new teeth, sharpen the teeth, replace the bushings and retaining rings with new ones, and then sell them back to customers of plaintiff with the intention and purpose of reuse or further use in connection with the bit heads purchased from plaintiff. The furnishing of one or more of several parts of a patented combination with the intention and purpose that the part or parts furnished shall be assembled with the other parts and the combination used as a unit is contributory infringement of the patent covering the complete combination. Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 325, 29 S.Ct. 503, 53 L.Ed. 816; Dental Co. of America v. S. S. White Dental Manufacturing Co., 3 Cir., 266 F. 524; Elliott Addressing Machine Co. v. McParlan, 2 Cir., 80 F.2d 870. It is further contended that the finding of infringement cannot be sustained for the reason that the evidence fails to show that defendants intend to or actually shape, arrange, and mount the teeth on their cones in substantial identity with the disclosures of the second and third patents. Cones manufactured and sold by plaintiff, and cones sold by defendants were offered in evidence and are before this court There was testimony by an expert witness that the construction of the teeth was exactly alike; that there was no particular difference between them; and that the only difference was in the use of rebuilt metal. There may be colorable differences between the conjoint invention of the patents and the cones sold by defendants, but they are insubstantial. A colorable departure from a patent does not avoid infringement. Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147; Skinner Bros. Belting Co. v. Oil Well Improvements Co., 10 Cir., 54 F.2d 896. Defendants assert that their acts ■constitute permissible repair and restoration of worn cones — not infringing manufacture or remaking in the sense of reconstruction. The nature and extent of the work done upon the cones has already been detailed. When a patentee sells a patented article without restrictions it passes outside the monopoly and the owner may use or sell it to another without liability for infringement, Cream Top Bottle Corp. v. Bailes, 10 Cir., 62 F.2d 714; and the purchaser of a machine or mechanical device consisting of several parts and covered by a patent on the whole as a unit has the right to repair ■or replace worn or broken parts, provided the machine as a whole still retains its identity and the parts repaired or replaced do not so dominate the structural substance of the whole as to constitute making the machine or device anew, and provided further that the parts so repaired or replaced are not separately covered by a patent. Here ■the first patent is for the assembly of a bushing, a retaining ring, and a cutter; and the second and third patents relate to teeth ■on the cutter. The defendants furnish new bushings and new retaining rings, and they •add new teeth to cutters. They furnish parts that are specifically covered by the •patents and then sell the cones for reuse. 'That is well outside the domain of permis•sible repair and restoration, and plainly constitutes infringement. American Cotton-Tie Company v. Simmons, 106 U.S. 89, 1 S.Ct. 52, 27 L.Ed. 79; Shickle, Harrison & Howard Iron Co. v. St. Louis Car-Coupler Co., 8 Cir., 77 F. 739; Goodyear Shoe Machinery Co. v. Jackson, 1 Cir., 112 F. 146, 55 L.R.A. 692; Morrin v. Robert White Engineering Works, 2 Cir., 143 F. 519; National Malleable Casting Co. v. American Steel Foundries, C.C., 182 F. 626; Automotive Parts Co. v. Wisconsin Axle Co., 6 Cir., 81 F.2d 125. The remaining question is whether defendant Dufek is personally liable for damages arising out of the infringement. Defendant Southwestern Tool Company is a corporation organized under the laws of Texas, with its principal office and place of business at Fort Worth; and Dufek is its president. An officer of a corporation participating in the corporation’s manufacture and sale of an infringing article is not personally liable for damages flowing from such piracy unless he acts wilfully and knowingly, or uses the corporation as an instrument to carry out his own deliberate infringement, or knowingly uses an irresponsible corporation with the intended purpose of avoiding personal liability. Dufek testified that he resided in Oklahoma City; that the defendant corporation did not have an office there; that application had been made for a charter in Oklahoma for a corporation to be known as the Southwestern Tool Company of Oklahoma; that he devoted all of his time to the selling of the cutters, and that a named person at Tonkawa, Oklahoma, was connected with him; that there was no one at his residence to take orders for cutters during his absence; that no one sold them but himself; that he went around to contractors and junk dealers and bought worn out cones; that they were then shipped or he hauled them to the shop of the corporation at Fort Worth where they were put in condition for resale; and that some remained there until they were delivered to purchasers, and some were freighted to Oklahoma City and stored until needed. He said “I take the cone in * * . I take it into the shop and rebuild it. * * We take it in the shop and burn the grease all off of it so as to get down to the surface. We rebuild it with an acetylene torch. * * * The cone is absolutely worn out when I pick it up to where it won’t dig and I resharpen them.” The testimony and the inferences reasonably to be drawn from it point to the conclusion that during the period in question Dufek dominated the corporation; that he wilfully and knowingly participated in the acts of infringement; and that he used the corporation as an instrument to carry out his own deliberate infringement. He is, therefore, jointly liable with the corporation for the damages resulting from the wrongful acts. National Cash-Register Co. v. Leland, 1 Cir., 94 F. 502; Hitchcock v. American Plate Glass Co., 3 Cir., 259 F. 948; Dangler v. Imperial Machine Co., 7 Cir., 11 F.2d 945; Claude Neon Lights, Inc., v. American Neon Light Corporation, 2 Cir., 39 F.2d 548; Denominational Envelope Co. v. Duplex Envelope Co., 4 Cir., 80 F.2d 186; Federal Trade Commission v. Standard Education Society, 2 Cir., 86 F.2d 692. The decree is affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations OLYMPIC AIRWAYS v. HUSAIN, individually, and as personal representative of the ESTATE OF HANSON, DECEASED, et al. No. 02-1348. Argued November 12, 2003 Decided February 24, 2004 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. Sc alia, J., filed a dissenting opinion, in which O’CONNOR, J., joined as to Parts I and II, post, p. 658. Breyer, J., took no part in the consideration or decision of the case. Andrew J. Harakas argued the cause for petitioner. With him on the briefs was Diane Westwood Wilson. H. Bartow Farr III argued the cause for respondents. With him on the brief were Richard G. Taranto, Gerald C. Sterns, and Susie Injijian. Barbara McDowell argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General Olson, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Lowell V. Stur-gill, Jr., William H. Taft IV, and Kirk K. Van Tine. Warren L. Dean, Jr., filed a brief for the Air Transport Association of America, Inc., as amicus curiae urging reversal. Justice Thomas delivered the opinion of the Court. Article 17 of the Warsaw Convention (Convention) imposes liability on an air carrier for a passenger’s death or bodily injury caused by an “accident” that occurred in connection with an international flight. In Air France v. Saks, 470 U. S. 392 (1985), the Court explained that the term “accident” in the Convention refers to an “unexpected or unusual event or happening that is external to the passenger,” and not to “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Id., at 405, 406. The issue we must decide is whether the “accident” condition precedent to air carrier liability under Article 17 is satisfied when the carrier’s unusual and unexpected refusal to assist a passenger is a link in a chain of causation resulting in a passenger’s pre-existing medical condition being aggravated by exposure to a normal condition in the aircraft cabin. We conclude that it is. I The following facts are taken from the District Court’s findings, which, being unchallenged by either party, we accept as true. In December 1997, Dr. Abid Hanson and his wife, Rubina Husain (hereinafter respondent), traveled with their children and another family from San Francisco to Athens and Cairo for a family vacation. During a stopover in New York, Dr. Hanson learned for the first time that petitioner allowed its passengers to smoke on international flights. Because Dr. Hanson had suffered from asthma and was sensitive to secondhand smoke, respondent requested and obtained seats away from the smoking section. Dr. Hanson experienced no problems on the flights to Cairo. For the return flights, Dr. Hanson and respondent arrived early at the Cairo airport in order to request nonsmoking seats. Respondent showed the check-in agent a physician’s letter explaining that Dr. Hanson “has [a] history of recurrent anaphylactic reactions,” App. 81, and asked the agent to ensure that their seats were in the nonsmoking section. The flight to Athens was uneventful. After boarding the plane for the flight to San Francisco, Dr. Hanson and respondent discovered that their seats were located only three rows in front of the economy-class smoking section. Respondent advised Maria Leptourgou, a flight attendant for petitioner, that Dr. Hanson could not sit in a smoking area, and said, “‘You have to move him.’” 116 F. Supp. 2d 1121, 1125 (ND Cal. 2000). The flight attendant told her to “ ‘have a seat.’ ” Ibid. After all the passengers had boarded but prior to takeoff, respondent again asked Ms. Leptourgou to move Dr. Hanson, explaining that he was “‘allergic to smoke.’” Ibid. Ms. Leptourgou replied that she could not reseat Dr. Hanson because the plane was “ ‘totally full’ ” and she was “too busy” to help. Ibid. Shortly after takeoff, passengers in the smoking section began to smoke, and Dr. Hanson was soon surrounded by ambient cigarette smoke. Respondent spoke with Ms. Leptourgou a third time, stating, “‘You have to move my husband from here.’” Id., at 1126. Ms. Leptourgou again refused, stating that the plane was full. Ms. Leptourgou told respondent that Dr. Hanson could switch seats with another passenger, but that respondent would have to ask other passengers herself, without the flight crew’s assistance. Respondent told Ms. Leptourgou that Dr. Hanson had to move even if the only available seat was in the cockpit or in business class, but Ms. Leptourgou refused to provide any assistance. About two hours into the flight, the smoking noticeably increased in the rows behind Dr. Hanson. Dr. Hanson asked respondent for a new inhaler because the one he had been using was empty. Dr. Hanson then moved toward the front of the plane to get some fresher air. While he was leaning against a chair near the galley area, Dr. Hanson gestured to respondent to get his emergency kit. Respondent returned with it and gave him a shot of epinephrine. She then awoke Dr. Umesh Sabharwal, an allergist, with whom Dr. Hanson and respondent had been traveling. Dr. Sabharwal gave Dr. Hanson another shot of epinephrine and began to administer CPR and oxygen. Dr. Hanson died shortly thereafter. Id., at 1128. Respondents filed a wrongful-death suit in California state court. Petitioner removed the case to federal court, and the District Court found petitioner liable for Dr. Hanson’s death. The District Court held that Ms. Leptourgou’s refusal to re-seat Dr. Hanson constituted an “accident” within the meaning of Article 17. Applying Saks’ definition of that term, the court reasoned that the flight attendant’s conduct was external to Dr. Hanson and, because it was in “blatant disregard of industry standards and airline policies,” was not expected or usual. 116 F. Supp. 2d, at 1134. The Ninth Circuit affirmed. Applying Saks’ definition of “accident,” the Ninth Circuit agreed that the flight attendant’s refusal to reseat Dr. Hanson “was clearly external to Dr. Hanson, and it was unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of Dr. Hanson’s requested accommodation.” 316 F. 3d 829,837 (2002). We granted certiorari, 538 U. S. 1056 (2003), and now affirm. II A We begin with the language of Article 17 of the Convention, which provides: “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.” 49 Stat. 3018. In Saks, the Court recognized that the text of the Convention does not define the term “accident” and that the context in which it is used is not “illuminating.” 470 U. S., at 399. The Court nevertheless discerned the meaning of the term “accident” from the Convention’s text, structure, and history as well as from the subsequent conduct of the parties to the Convention. Neither party here contests Saks’ definition of the term “accident” under Article 17 of the Convention. Rather, the parties differ as to which event should be the focus of the “accident” inquiry. The Court’s reasoning in Saks sheds light on whether the flight attendant’s refusal to assist a passenger in a medical crisis is the proper focus of the “accident” inquiry. In Saks, the Court addressed whether a passenger’s “.‘loss of hearing proximately caused by normal operation of the aircraft’s pressurization system’” was an “‘accident.’” Id., at 395. The Court concluded that it was not, because the injury was her “own internal reaction” to the normal pressurization of the aircraft’s cabin. Id., at 406. The Court noted two textual clues to the meaning of the term “accident.” First, the Convention distinguishes between liability under Article 17 for death or injuries to passengers caused by an “accident” and liability under Article 18 for destruction or loss of baggage caused by an “occurrence.” Id., at 398. The difference in these provisions implies that the meaning of the term “accident” is different from that of “occurrence.” Ibid. Second, the Court found significant the fact that Article 17 focuses on the “accident which caused” the passenger’s injury and not an accident that is the passenger’s injury. Ibid. The Court explained that it is the cause of the injury — rather than the occurrence of the injury — that must satisfy the definition of “accident.” Id., at 399. And recognizing the Court's responsibility to read the treaty in a manner “consistent with the shared expectations of the contracting parties,” ibid., the Court also looked to the French legal meaning of the term “accident,” which when used to describe the cause of an injury, is usually defined as a “fortuitous, unexpected, unusual, or unintended event,” id., at 400. Accordingly, the Court held in Saks that an “accident” under Article 17 is “an unexpected or unusual event or happening that is external to the passenger,” and not “the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.” Id., at 405, 406. The Court emphasized that the definition of “accident” “should be flexibly applied after assessment of all the circumstances surrounding a passenger’s injuries.” Id., at 405. The Court further contemplated that intentional conduct could fall within the “accident” definition under Article 17, an interpretation that comports with another provision of the Convention. As such, Saks correctly characterized the term “accident” as encompassing more than unintentional conduct. The Court focused its analysis on determining “what causes can be considered accidents,” and observed that Article 17 “embraces causes of injuries” that are “unexpected or unusual.” Id., at 404, 405. The Court did not suggest that only one event could constitute the “accident,” recognizing that “[a]ny injury is the product of a chain of causes.” Id., at 406. Thus, for purposes of the “accident” inquiry, the Court stated that a plaintiff need only be able to prove that “some link in the chain was an unusual or unexpected event external to the passenger.” Ibid. B Petitioner argues that the “accident” inquiry should focus on the “injury producing event,” Reply Brief for Petitioner 4, which, according to petitioner, was the presence of ambient cigarette smoke in the aircraft's cabin. Because petitioner's policies permitted smoking on international flights, petitioner contends that Dr. Hanson’s death resulted from his own internal reaction — namely, an asthma attack — to the normal operation of the aircraft. Petitioner also argues that the flight attendant’s failure to move Dr. Hanson was inaction, whereas Article 17 requires an action that causes the injury. We disagree. As an initial matter, we note that petitioner did not challenge in the Court of Appeals the District Court’s finding that the flight attendant’s conduct in three times refusing to move Dr. Hanson was unusual or unexpected in light of the relevant industry standard or petitioner’s own company policy. 116 F. Supp. 2d, at 1133. Petitioner instead argued that the flight attendant’s conduct was irrelevant for purposes of the “accident” inquiry and that the only relevant event was the presence of the ambient cigarette smoke in the aircraft’s cabin. Consequently, we need not dispositively determine whether the flight attendant’s conduct qualified as “unusual or unexpected” under Saks, but may assume that it was for purposes of this opinion. Petitioner’s focus on the ambient cigarette smoke as the injury producing event is misplaced. We do not doubt that the presence of ambient cigarette smoke in the aircraft’s cabin during an international flight might have been “normal” at the time of the flight in question. But petitioner’s “injury producing event” inquiry — which looks to “the precise factual ‘event’ that caused the injury” — neglects the reality that there are often multiple interrelated factual events that combine to cause any given injury. Brief for Petitioner 14. In Saks, the Court recognized that any one of these factual events or happenings may be a link in the chain of causes and — so long as it is unusual or unexpected — could constitute an “accident” under Article 17. 470 U. S., at 406. Indeed, the very fact that multiple events will necessarily combine and interrelate to cause any particular injury makes it difficult to define, in any coherent or non-question-begging way, any single event as the “injury producing event.” Petitioner’s only claim to the contrary here is to say: “Looking to the purely factual description of relevant events, the aggravating event was Dr. Hanson remaining in his assigned non-smoking seat and being exposed to ambient smoke, which allegedly aggravated his pre-existing asthmatic condition leading to his death,” Brief for Petitioner 24, and that the “injury producing event” was “not the flight attendant’s failure to act or violation of industry standards,” Reply Brief for Petitioner 9-10. Petitioner ignores the fact that the flight attendant’s refusal on three separate occasions to move Dr. Hanson was also a “factual ‘event,’ ” Brief for Petitioner 14, that the District Court correctly found to be a “ ‘link in the chain’ ” of causes that led to Dr. Hanson’s death, 116 F. Supp. 2d, at 1135. Petitioner’s statement that the flight attendant’s failure to reseat Dr. Hanson was not the “injury producing event” is nothing more than a bald assertion, unsupported by any law or argument. An example illustrates why petitioner’s emphasis on the ambient cigarette smoke as the “injury producing event” is misplaced. Suppose that petitioner mistakenly assigns respondent and her husband to seats in the middle of the smoking section, and that respondent and her husband do not notice that they are in the smoking section until after the flight has departed. Suppose further that, as here, the flight attendant refused to assist respondent and her husband despite repeated requests to move. In this hypothetical case, it would appear that, “[ljooking to the purely factual description of relevant events, the aggravating event was [the passenger] remaining in his assigned ... seat and being exposed to ambient smoke, which allegedly aggravated his preexisting asthmatic condition leading to his death.” Brief for Petitioner 24. To argue otherwise, petitioner would have to suggest that the misassignment to the smoking section was the “injury producing event,” but this would simply beg the question. The fact is, the exposure to smoke, the misassignment to the smoking section, and the refusal to move the passenger would all be factual events contributing to the death of the passenger. In the instant case, the same can be said: The exposure to the smoke and the refusal to assist the passenger are happenings that both contributed to the passenger’s death. And petitioner's argument that the flight attendant’s failure to act cannot constitute an “accident” because only affirmative acts are “event[s] or happening[s]” under Saks is unavailing. 470 U. S., at 405. The distinction between action and inaction, as petitioner uses these terms, would perhaps be relevant were this a tort law negligence case. But respondents do not advocate, and petitioner vigorously rejects, that a negligence regime applies under Article 17 of the Convention. The relevant “accident” inquiry under Saks is whether there is “an unexpected or unusual event or happening.” Ibid, (emphasis added). The rejection of an explicit request for assistance would be an “event” or “happening” under the ordinary and usual definitions of these terms. See American Heritage Dictionary 635 (3d ed. 1992) (“event”: “[something, that takes place; an occurrence”); Black’s Law Dictionary 554-555 (6th ed. 1990) (“event”: “Something that happens”); Webster’s New International Dictionary 885 (2d ed. 1949) (“event”: “The fact of taking place or occurring; occurrence” or “[t]hat which comes, arrives, or happens”). Moreover, the fallacy of petitioner’s position that an “accident” cannot take the form of inaction is illustrated by the following example. Suppose that a passenger on a flight inexplicably collapses and stops breathing and that a medical doctor informs the flight crew that the passenger’s life could be saved only if the plane lands within one hour. Suppose further that it is industry standard and airline policy to divert a flight to the nearest airport when a passenger otherwise faces imminent death. If the plane is within 30 minutes of a suitable airport, but the crew chooses to continue its cross-country flight, “[t]he notion that this is not an unusual event is staggering.” McCaskey v. Continental Airlines, Inc., 159 F. Supp. 2d 562, 574 (SD Tex. 2001). Confirming this interpretation, other provisions of the Convention suggest that there is often no distinction between action and inaction on the issue of ultimate liability. For example, Article 25 provides that Article 22’s liability cap does not apply in the event of “wilful misconduct or . . . such default on [the carrier’s] part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.” 49 Stat. 3020 (emphasis added). Because liability can be imposed for death or bodily injury only in the case of an Article 17 “accident” and Article 25 only lifts the caps once liability has been found, these provisions read together tend to show that inaction can give rise to liability. Moreover, Article 20(1) makes clear that the “due care” defense is unavailable when a carrier has failed to take “all necessary measures to avoid the damage.” Id., at 3019. These provisions suggest that an air carrier’s inaction can be the basis for liability. Finally, petitioner contends that the Ninth Circuit improperly created a negligence-based “accident” standard under Article 17 by focusing on the flight crew’s negligence as the “accident.” The Ninth Circuit stated: “The failure to act in the face of a known, serious risk satisfies the meaning of ‘accident’ within Article 17 so long as reasonable alternatives exist that would substantially minimize the risk and implementing these alternatives would not unreasonably interfere with the normal, expected operation of the airplane.” 316 F. 3d, at 837. Admittedly, this language does seem to approve of a negligence-based approach. However, no party disputes the Ninth Circuit’s holding that the flight attendant’s conduct was “unexpected and unusual,” ibid., which is the operative language under Saks and the correct Article 17 analysis. For the foregoing reasons, we conclude that the conduct here constitutes an “accident” under Article 17 of the Warsaw Convention. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Breyer took no part in the consideration or decir sion of this case. Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T. S. No. 876 (1934), note following 49 U. S. C. § 40105. Dr. Hanson and respondent did not know at the time that, despite Ms. Leptourgou’s representations, the flight was actually not full. There were 11 unoccupied passenger seats, most of which were in economy class, and 28 “non-revenue passengers,” 15 of whom were seated in economy class rows farther away from the smoking section than Dr. Hanson’s seat. 116 F. Supp. 2d, at 1126. For religious reasons, no autopsy was performed to determine the cause of death. The Warsaw Convention’s governing text is in French. We cite to the official English translation of the Convention, which was before the Senate when it consented to ratification of the Convention in 1934. See 49 Stat. 3014; Air France v. Saks, 470 U. S. 392, 397 (1985). After a plaintiff has established a prima facie case of liability under Article 17 by showing that the injury was caused by an “accident,” the air carrier has the opportunity to prove under Article 20 that it took “all necessary measures to avoid the damage or that it was impossible for [the airline] to take such measures.” 49 Stat. 3019. Thus, Article 17 creates a presumption of air carrier liability and shifts the burden to the air carrier to prove lack of negligence under Article 20. Lowenfeld & Mendel-sohn, The United States and the Warsaw Convention, 80 Harv. L. Rev. 497, 521 (1967). Article 22(1) caps the amount recoverable under Article 17 in the event of death or bodily injury, and Article 25(1) removes the cap if the damage is caused by the “wilful misconduct” of the airline or its agent, acting within the scope of his employment. See 49 Stat. 3019,3020. Additionally, Article 21 enables an air carrier to avoid or reduce its liability if it can prove the passenger’s comparative negligence. See id., at 3019. The term “accident” has at least two plausible yet distinct definitions. On the one hand, as noted in Saks, “accident” may be defined as an unintended event. See Webster’s New World College Dictionary 8 (4th ed. 1999) (“a happening that is not... intended”); see also American Heritage Dictionary 10 (4th ed. 2000) (“[l]aek of intention; chance”); Saks, 470 U. S., at 400. On the other hand, as noted in Saks, the term “accident” may be defined as an event that is “unusual” or “unexpected,” whether the result of intentional action or not. Ibid. See Black’s Law Dictionary 15 (6th ed. 1990) (“an unusual, fortuitous, unexpected, unforeseen, or unlooked for event, happening or occurrence” and “if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens”); see also American Heritage Dictionary, supra, at 10 (“[a]n unexpected and undesirable event,” “[a]n unforeseen incident”). Although either definition of “accident” is at first glance plausible, neither party contests the definition adopted by the Court in Saks, which after carefiil examination discerned the meaning of “accident” under Article 17 of the Convention as an “unexpected or unusual event or happening that is external to the passenger.” 470 U. S., at 405. The Court cited approvingly several lower court opinions where intentional acts by third parties — namely, torts committed by terrorists — were recognized as “accidents” under a “broa[dj” interpretation of Article 17. Ibid, (citing lower court cases). Specifically, Article 25 removes the cap on air carrier liability when the injury is caused by the air carrier’s “wilful misconduct.” 49 Stat. 3020. Because there can be no liability for passenger death or bodily injury under the Convention in the absence of an Article 17 “accident,” such “wilful misconduct” is best read to be included within the realm of conduct that may constitute an “accident” under Article 17. The dissent cites two cases from our sister signatories England and Australia — Deep Vein Thrombosis and Air Travel Group Litigation, [2004] Q. B. 234, and Qantas Ltd. v. Povey, [2003] VSCA 227, ¶ 17, 2003 WL 23000692, ¶ 17 (Dec. 23, 2003) (Ormiston, J. A.), respectively — and suggests that we should simply defer to their judgment on the matter. But our conclusion is not inconsistent with Deep Vein Thrombosis and Air Travel Group Litigation, where the England and Wales Court of Appeal commented on the District Court and Court of Appeals opinions in this case, and agreed that Dr. Hanson’s death had resulted from an accident. The English court reasoned: “The refusal of the flight attendant to move Dr. Hanson cannot properly be considered as mere inertia, or a non-event. It was a refusal to provide an alternative seat which formed part of a more complex incident, whereby Dr. Hanson was exposed to smoke in circumstances that can properly be described as unusual and unexpected.” [2004] Q. B., at 254, ¶ 50. To the extent that the precise reasoning used by the courts in Deep Vein Thrombosis and Air Travel Group Litigation and Povey is inconsistent with .our reasoning, we reject the analysis of those cases for the reasons stated in the body of this opinion. In such a circumstance, we are hesitant to “follo[w]” the opinions of intermediate appellate courts of our sister signatories, post, at 658 (Scalia, J., dissenting). This is especially true where there are substantial factual distinctions between these cases, see [2004] Q. B., at 248, ¶ 29 (confronting allegations of a “failure to warn of the risk of [deep-vein thrombosis], or to advise on precautions which would avoid or minimise that risk”); VSCA 227, ¶ 3, 2003 WL 23000692, ¶ 3 (noting plaintiff alleged a failure to provide “any information or warning about the risk of [deep-vein thrombosis] or of any measures to reduce the risk”), and where the respective courts of last resort — the House of Lords and High Court of Australia — have yet to speak. We do not suggest — as the dissent erroneously contends — that liability must lie because otherwise “harsh, results,” post, at 664 (opinion of Scalia, J.), would ensue. This hypothetical merely illustrates that the failure of an airline crew to take certain necessary vital steps could quite naturally and, in routine usage of the language, be an “event or happening.” The Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules relating to International Carriage by Air (1975) amends Article 25 by replacing “wilful misconduct” with the language “done with intent to cause damage or recklessly and with knowledge that damage would probably result,” as long as the airline’s employee or agent was acting “within the scope of his employment.” S. Exec. Rep. No. 105-20, p. 29 (1998). In 1998, the United States gave its advice and consent to ratification of the protocol, and it entered into force in the United States on March 4, 1999. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 174, n. 14 (1999). Because the facts here took place in 1997-1998, Montreal Protocol No. 4 does not apply. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Asnaldo SANCHEZ, a/k/a Hernando, Jesus Gonzalez, Defendants-Appellants. No. 81-5708. United States Court of Appeals, Eleventh Circuit. Jan. 16, 1984. Rehearing Denied Feb. 23, 1984. Carl L. Masztal, Miami, Fla., for Sanchez. Sheryl Joyce Lowenthal, Miami, Fla., for Gonzalez. Caroline Heck, Asst. U.S. Atty., Jon A. May, U.S. Atty., Miami, Fla., for plaintiff-appellee. Before FAY and KRAVITCH, Circuit Judges, and ATKINS, District Judge. Honorable C. Clyde Atkins, U.S. District Court Judge for the Southern District of Florida, sitting by designation. KRAVITCH, Circuit Judge: The appellants, Asnaldo Sanchez and Jesus Gonzalez, were tried and convicted by a jury of conspiracy to import cocaine in violation of 21 U.S.C. §§ 952(a) and 963, and of attempt to import cocaine in violation of 21 U.S.C. §§ 952(a) and 963 and 18 U.S.C. § 2. Gonzalez was also found guilty on two counts of importation of cocaine, 21 U.S.C. § 952(a) and 18 U.S.C. § 2, and two counts of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. I. BACKGROUND The appellants’ convictions arose out of an extensive Drug Enforcement Agency (DEA) undercover operation known as Operation Grouper investigating the drug trade in the Bahamas and South Florida. Two of the agents involved in Operation Grouper, Thomas Weed and Peter Sarron, were the primary witnesses for the government at trial. They testified to three different occasions when the appellants had acted to bring cocaine into the United States. Agent Weed testified that he and a confidential informant, Thomas Mallis, had met on the night of July 26, 1979 with Gonzalez and Emilio Carreras and that they had proceeded to a hotel where they met with two Colombians, Carlos Zaccour and a man identified as Hernando. Zaccour gave Weed two suitcases with fake compartments that he said contained five kilograms of cocaine. The group returned to Gonzalez’s boat, a yellow, twenty-four foot For-muía, and the packets, after some difficulty, were placed in secret compartments in the boat’s deck. The compartments were then treated by Gonzalez with fiberglass and painted over to match the deck’s color. Early the next morning, Gonzalez and Carr-eras departed for the United States with the packets secreted aboard the boat. Gonzalez had told Weed that he was to receive $5,000 per kilogram for smuggling the cocaine. Although Weed alerted Customs Officials in Florida, the shipment was never intercepted. On August 8,1979, however, Weed visited Gonzalez at his home in Miami and asked him if they had succeeded in smuggling the cocaine. Gonzalez replied that they had gotten the cocaine in, but that he had made only $10,000. Gonzalez also told Weed that the cocaine was for a friend of Sanchez’s named Rafael. Weed further testified that on August 16, 1979, he ran into Sanchez at a convenience store in Miami and that he had asked him if they had succeeded in smuggling the cocaine. Sanchez replied that they had been successful, but that he had personally not made any money. Upon being asked by Weed whether he appreciated Weed’s help, Sanchez replied affirmatively. The second incident took place on September 29, 1979, when a Customs aircraft followed the yellow Formula from the Bahamas to Miami. Upon docking, the boat was seized on the pretext that it had not cleared Customs. The boat’s two occupants were Gonzalez and Carreras. The vessel was then taken to the Customs House where 1.64 kilograms of cocaine were discovered in the secret compartments. A sham cocaine substance was substituted, and the boat was returned to Gonzalez after he paid a $1500 fine. Agent Sarron testified that six days later, on October 5, 1979, he and Mallis met with Sanchez at Sanchez’s home and that Sanchez told him that he wanted his help in bringing in two suitcases of cocaine from the Bahamas. Sanchez also told Sarron of Gonzalez’s experience with the boat being seized and stated that, although no one had been arrested, the cocaine had been no good and had to be discarded. That same evening Sarron met with Gonzalez and was again told about the boat being seized and the cocaine turning out to be bad. Gonzalez also solicited Sarron’s help in bringing in another shipment of cocaine. The final episode took place on October 7, 1979. United States Customs Agents, maintaining surveillance for the yellow Formula, spotted it arriving at the marina shortly after sunrise. Gonzalez and Carrer-as were stopped as they were about to tow the boat out of the marina, and the boat, along with the truck and trailer, was again seized. A search of the boat led to the discovery of over four kilograms of cocaine hidden in the boat’s deck compartments. When Gonzalez returned to claim the boat two days later, he was read his rights by a Customs Officer and informed that cocaine had been discovered aboard the boat. Gonzalez disclaimed any knowledge of the cocaine and also denied knowing how to use fiberglass or having had any work done on the boat within the last thirty days. He was then released, but the boat was kept by Customs. On December 6, 1979, Sanchez told Weed and Sarron that Gonzalez’s boat had been seized but that Gonzalez had not been arrested. At a later meeting, on September 4, 1980, Sanchez again informed Weed that Gonzalez had lost his truck, trailer, and boat, but that Gonzalez was lucky to not have been arrested. Sanchez, Gonzalez, and Carreras all testified at trial, each denying any involvement in a conspiracy to import cocaine. They admitted that they knew Agents Weed and Sarron, but only as friends and did not know of their involvement in the drug trade. Sanchez also claimed he was in New York on business on August 16, 1979, the date on which Weed stated he had met Sanchez at the convenience store. Both Sanchez and Gonzalez challenge their convictions on several grounds: that there was insufficient evidence to support their convictions, that the court improperly admitted coconspirator hearsay statements into evidence, and that they were denied a fair trial due to certain prejudicial answers by government witnesses. Gonzalez also attacks his convictions on the charges arising out of the October 7, 1979 episode as violative of his rights to a speedy trial and due process. II. SUFFICIENCY OF THE EVIDENCE Challenges to the sufficiency of the evidence are measured by the standard delineated in United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B) (en banc), aff’d on other grounds, - U.S. -, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983): It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence. In making this determination, we must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and accept reasonable inferences and credibility choices by the fact-finder, United States v. Gonzalez, 719 F.2d 1516, 1521-22 (11th Cir.1983). A. The Conspiracy Charges To establish a conspiracy, the government must prove that “there was an agreement between two or more persons to commit a crime, that each conspirator knew of, intended to join, and participated in the conspiracy.” United States v. Glasgow, 658 F.2d 1036, 1040 (5th Cir. Unit B 1981). An overt act is not required, only proof that the defendant conspired to commit the prohibited offense. United States v. Anderson, 651 F.2d 375, 379 (5th Cir. Unit A 1981). The evidence presented by the government establishes that both Gonzalez and Sanchez were participants in a conspiracy to import cocaine. The evidence shows that Gonzalez on three separate occasions, with Carreras’ help, brought cocaine into the United States from the Bahamas; twice the shipments were seized. The evidence also shows that Gonzalez’s acts were part of an agreement with other individuals, namely Zaccour and Sanchez, to import cocaine in violation of United States law. Although Gonzalez denied any knowledge of the transactions, the credibility choice between Gonzalez’s testimony and that of the government agents was for the jury. Gonzalez, supra. Likewise, the testimony of Agent Sarron establishes Sanchez’s role in the conspiracy. In a meeting with Sarron on October 5, 1979, Sanchez actively solicited the agents’ assistance in bringing into the United States two suitcases of cocaine that Zaccour was holding in the Bahamas. Sanchez’s knowledge of the conspiracy was also evidenced by his conversations with the agents when he related in detail what had happened to the various shipments Gonzalez had brought into the United States. B. The July 26, 1979 Attempt to Import Both Sanchez and Gonzalez contend that there was insufficient evidence verifying either that the substance involved in the July 26, 1979 shipment was cocaine or that it ever reached the United States. Each also individually challenges the sufficiency of the evidence linking them to the attempt to import. Although the identity of a narcotic must be established beyond a reasonable doubt, its nature may be established through circumstantial evidence. United States v. Crisp, 563 F.2d 1242 (5th Cir.1977). Agent Weed testified that, based on eleven years as a drug enforcement agent, he believed that the substance he was helping place in Gonzalez’s boat was cocaine. See United States v. Ferguson, 555 F.2d 1372, 1373 (9th Cir.1977) (experienced officer may identify substance with which he is familiar). Furthermore, the substance was referred to as cocaine by Gonzalez and Zacc-our during the loading and by Gonzalez and Sanchez after it arrived. Based on Weed’s testimony, and our obligation to accept reasonable inferences and credibility choices by the fact-finder, Gonzalez, supra, we find sufficient evidence to support the jury’s determination that the substance was cocaine. The appellants’ contention that there is insufficient evidence to show that the cocaine actually reached the United States is also without merit. To be convicted of attempt to import narcotics, the narcotics need not actually reach the United States. United States v. Perez-Herrera, 610 F.2d 289, 291 (5th Cir.1980). Moreover, Agent Weed testified that both Gonzalez and Sanchez acknowledged on different occasions that the cocaine had been successfully imported. Gonzalez’s actual participation in the attempted importation is amply supported by the evidence. Weed testified to watching Gonzalez place the packages of cocaine in the secret compartments of the boat and then fiberglassing over the areas and painting them. He also related a conversation with Gonzalez on August 8, 1979, in which Gonzalez told him that he had received $10,-000 for successfully importing the cocaine. Likewise, we find sufficient evidence under the Bell standard to uphold Sanchez’s conviction. In the October 5, 1979 meeting with Agent Sarron, Sanchez informed Sarron that Weed had been very helpful in bringing in the July 26th shipment of cocaine. Sanchez had also told Weed in their August 16, 1979 conversation at the convenience store that the cocaine had arrived and that he appreciated Weed’s help. From this testimony, the jury could have reasonably concluded that Sanchez had an active part in importing the July 26th shipment. C. The September 29, 1979 and October 7, 1979 Shipments Gonzalez was also convicted of knowingly and intentionally importing cocaine and possession of cocaine with intent to distribute for each of the two shipments on September 29,1979 and October 7, 1979. Both shipments were seized when Gonzalez’s boat was impounded on the pretext that he had not registered with U.S. Customs upon entering the United States. The September 29th shipment was replaced with the sham cocaine substitute, while Gonzalez was confronted with the fact that cocaine had been found aboard the boat when it was seized on October 7th. Gonzalez in his testimony denied any knowledge of the shipments or that he knew how to use fiberglass so as to seal the secret compartments where the cocaine was found. Agent Sarron testified, however, that on October 5, 1979, Gonzalez told him that his boat had been impounded and that the cocaine (the sham substitute) had turned out to be no good; at that same meeting, Gonzalez made arrangements for the October 7th shipment. Moreover, Weed testified that he had observed Gonzalez use fiberglass and paint to conceal the secret compartments for the July 26th shipment, further contradicting Gonzalez’s testimony. Finally, Sanchez on a number of occasions subsequent to the seizure of the shipments related to both Agents Weed and Sarron that Gonzalez’s boat had been impounded but that Gonzalez had been lucky not to have been arrested. Based on this evidence, a jury could have reasonably found Gonzalez guilty of the charges arising out of these shipments. III. ADMISSION OF COCONSPIRATOR STATEMENTS The appellants also contend that the admission into evidence of hearsay statements by coconspirators violated United States v. James, 590 F.2d 575 (5th Cir.), cert. denied 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979). Coconspirator statements are admissible only if the court finds that the government has shown by substantial, independent evidence that: (1) a conspiracy existed, (2) the defendant and de-clarant were both part of the conspiracy, and (3) the statements were made during the course of and in furtherance of the conspiracy. James, supra at 581; United States v. Yonn, 702 F.2d 1341 (11th Cir.1983). The court’s findings as to the admissibility of the statements are subject to a clearly erroneous standard of review, United States v. Bulman, 667 F.2d 1374, 1379 (11th Cir.), cert. denied 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). At the conclusion of the government’s case, the judge heard argument from counsel on the James issue and held: The Court finds, I think clearly and convincingly], certainly by a preponderance of the evidence, and if I were the trier of fact, could possibly [find] by beyond a reasonable doubt that there is substantial independent evidence linking these defendants to a conspiracy, that the statements that the Government has elicited were made by one who had joined in the conspiracy with the party against whom the statement was offered; that the statements were made during the course of that conspiracy, and the statements were made in furtherance of the conspiracy. The appellants argue that the district court erred because a separate, pretrial James hearing should have been held before the jury heard the evidence. A separate James hearing prior to the presentation of the government’s case-in-chief, however, is not required. United States v. Roe, 670 F.2d 956, 962 (11th Cir.1982). The judge, therefore, did not err in deciding the James issue until after the government had introduced the statements into evidence. Nor, after reviewing the record, do we find that the trial court erred in determining that the James prerequisites for admission of the statements were met in this case. IV. PREJUDICIAL REMARKS BY GOVERNMENT WITNESSES The appellants further allege that they were denied a fair trial because Agents Weed and Sarron made several prejudicial remarks while testifying. Agent Weed, when describing his July 26, 1979 meeting with Zaccour and Gonzalez, testified that Zaccour had shown him false passports, a crime not charged in the indictment; the trial judge gave a curative instruction to the jury to disregard the testimony. Later in his testimony, Weed stated that Sanchez had requested him to go to Colombia to pick up a load of marijuana, which was also not part of the indictment. The judge again gave a curative instruction and asked the jury if anyone could not disregard the evidence; all the jurors indicated they could obey the instruction. Finally, Agent Sarron testified that Gonzalez, while telling him that the cocaine involved in the September 29th shipment had turned out to be bad, stated: [Gonzalez] said, “I paid [the fine]. I got the boat back, but the cocaine was no good. We throw it away.” He said, “two people, bang bang, get killed because of this.” Agent Sarron’s description of the conversation was accompanied by a gesture whereby Sarron pointed his finger at his head as if holding a gun. The court denied the defendants’ motion for a mistrial, and instead gave a curative instruction and individually polled the jurors to determine whether they could disregard the statement. We agree with the district court that the above statements were improper, as any probative value was outweighed by their prejudicial effect. See F.R.Evid. 403. The statement by Agent Sarron, by implying that uncharged murders had taken place, was especially inappropriate; as the trial judge advised government counsel, “In my humble judgment, you made a terrible mistake.” The district court, therefore, acted properly in striking the disputed testimony. Deciding that the testimony was improper, however, is only the first step of our inquiry. We must further decide whether, in light of the court’s curative actions, any resulting prejudice prevented the defendants from receiving a fair trial. In United States v. Barnes, 681 F.2d 717 (11th Cir.1982), the government’s witness testified that the defendant had made a death threat, and the trial judge gave a curative instruction to disregard the testimony and collectively polled the jury. We held that although the statement was prejudicial, the trial court’s instruction cured any potential prejudice to the defendant. Id. at 725. Similarly, the trial judge here gave an extensive curative instruction: Just immediately prior to your recess, there was some testimony which was the result of a statement of what purported to have been said which may have happened because certain of the cocaine was not good. That is not a proper statement to present to you. The matter is completely irrelevant and has no bearing on this case, whatsoever, and I have to instruct you to completely and unequivocally disregard any inference of any kind that may be drawn from that testimony. Now, it may mean that one of you will be able to look up to me and say, “Judge I do not think I can do that,” and if you cannot, do not hesitate. Do not be reluctant, because, you know, we do not get paid on a case by case basis to do justice, and we will start this case all over if any of you feel that it would prohibit you from giving these defendants a fair trial. The judge then individually polled the jurors, including further questioning of one juror who defense counsel thought might be equivocating. None of the jurors indicated they could not obey the curative instruction. Although we strongly disapprove of the government’s decision to elicit this testimony, we believe that any potential prejudice from Agent Sarron’s testimony was cured by the judge’s cautious efforts to ensure that no incurable prejudice had occurred. Barnes, supra. We hold likewise as to Agent Weed’s testimony regarding the un-indicted crimes, as the judge carefully instructed the jury to disregard the evidence and polled them to make sure they would obey the instruction. Thus, while we do not approve of the government’s or its witnesses’ actions, we do not find that any reversible error resulted. V. THE SPEEDY TRIAL AND DUE PROCESS CLAIMS Gonzalez’s final contention is that he was in effect arrested on October 9, 1979, when he was read his rights and questioned about the cocaine found aboard his boat, and, because he was not indicted until March 5, 1981, his statutory and constitutional rights to a speedy trial and due process were therefore violated. We find these arguments without merit. A defendant is not arrested for the purposes of the Speedy Trial Act, 18 U.S.C. 3161(b), until formal charges are pending. United States v. Varella, 692 F.2d 1352, 1358 (11th Cir.1982). The same is true for the Sixth Amendment right to a speedy trial. United States v. McDonald, 456 U.S. 1, 102 S.Ct. 1497, 1500-02, 71 L.Ed.2d 696 (1982). Therefore, because no formal charges were lodged after Gonzalez was read his Miranda rights and questioned on October 9, 1979, the protections of the ‘Act and the Sixth Amendment are inapplicable. Nor has Gonzalez shown any prejudice arising from the government’s delay in bringing formal charges that would arise to a due process violation under the Fifth Amendment. To succeed in a due process claim the defendant must show (1) that substantial prejudice resulted because of the government’s delay and (2) that the prosecution intentionally employed the delay to obtain a tactical advantage. United States v. Avalos, 541 F.2d 1100, 1107 (5th Cir.1976). The only prejudice that Gonzalez has alleged is the unavailability of the boat to be viewed by the jury, which he contends would have allowed them to observe that the eoeaine was hidden from view. The government, however, never alleged that the cocaine was in open view; indeed, part of its case against Gonzalez was that he had stored the cocaine in hidden compartments and sealed them over with fiberglass. Likewise, Gonzalez has not shown that the government intentionally delayed bringing charges for the purpose of gaining a tactical advantage. The most that Gonzalez has demonstrated is that the government could have brought the importation and possession charges earlier, an argument akin to that which we rejected in Avalos: “The appellants assert only that the government knew about the conspiracy before October 1972 and could have initiated the prosecution sooner. The same could be said of almost every complex conspiracy case; this scarcely shows requisite tactical delay.” 541 F.2d at 1108. Gonzalez has thus failed to show government misconduct or intentional delay arising to an infringement of his due process rights. VI. CONCLUSION After reviewing the record, we find that the appellants’ convictions were supported by the evidence and that the appellants were accorded a fair trial. The convictions and sentences of Sanchez and Gonzalez are AFFIRMED. . Carreras was convicted of the same charges as Gonzalez. He is not appealing his conviction. . The Eleventh Circuit has adopted as binding precedent decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982). . The appellants also point to several remarks by Weed on cross-examination implying that there were other investigations involving the appellants. These comments, however, were so oblique as to not be prejudicial and, as the trial judge ruled, were in response to questions by defense counsel which “clearly and unequi-vocably jarred the door open.” . The government justified the testimony on the ground that Agent Sarron if allowed to continue testifying was going to state that to his knowledge no one had actually been killed and the statements were simply “macho puffing” by Gonzalez. Even if this were true, it is hard to imagine what probative value such statements would have in showing the existence of a drug conspiracy. We do note, however, that the judge specifically found that the government had acted inadvertently and was not intentionally overreaching. . The appellants attempt to distinguish Barnes on the ground that Barnes involved a “death threat,” while here the testimony went to actual killings. Although we do not hold that the distinction is irrelevant for determining the degree of prejudice that resulted from the statement, our inquiry is still the same as in Barnes: whether the trial court’s actions effectively cured the potential prejudice. . The boat had been sold in forfeiture proceedings prior to trial. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_issue_8	18	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. KOONS BUICK PONTIAC GMC, INC. v. NIGH No. 03-377. Argued October 5, 2004 Decided November 30, 2004 Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 65. Kennedy, J., filed a concurring opinion, in which Rehnquist, C. J., joined, post, p. 66. Thomas, J., filed an opinion concurring in the judgment, post, p. 67. Scalia, J., filed a dissenting opinion, post, p. 70. Donald B. Ayer argued the cause for petitioner. With him on the briefs were William K. Shirey II and Arthur M. Schwartzstein. A. Hugo Blankingship III argued the cause for respondent. With him on the brief were Allison M. Zieve and Brian Wolf man. Briefs of amici curiae urging reversal were filed for the American Bankers Association et al. by Roy T. Englert, Jr., Alan E. Untereiner, and Max Huffman; for the Michigan Bankers Association by John J. Bursch; for the National Automobile Dealers Association by Paul R. Norman; and for the Virginia Automobile Dealers Association et al. by Michael G. Charapp, Brad D. Weiss, and Allen Jones, Jr. Briefs of amici curiae urging affirmance were filed for the Commercial Law League of America by Manuel H. Newburger and Barbara M. Barron; and for the National Association of Consumer Advocates et al. by Richard J Rubin and Joanne S. Faulkner. Justice Ginsburg delivered the opinion of the Court. The meaning of a subparagraph in a section of the Truth in Lending Act (TILA or Act), 15 U. S. C. § 1601 et seq., is at issue in this case. As originally enacted in 1968, the provision in question bracketed statutory damages for violations of TILA prescriptions governing consumer loans: $100 was made the minimum recovery and $1,000, the maximum award. In 1995, Congress added a new clause increasing recovery for TILA violations relating to closed-end loans “secured by real property or a dwelling.” § 1640(a)(2)(A)(iii). In lieu of the $100/$1,000 minimum and maximum recoveries, Congress substituted $200/$2,000 as the floor and ceiling. Less-than-meticulous drafting of the 1995 amendment created an ambiguity. A divided panel of the United States Court of Appeals for the Fourth Circuit held that the 1995 amendment not only raised the statutory damages recoverable for TILA violations involving real-property-secured loans, it also removed the $1,000 cap on recoveries involving loans secured by personal property. We reverse that determination and hold that the 1995 amendment left unaltered the $100/$1,000 limits prescribed from the start for TILA violations involving personal-property loans. The purpose of the 1995 amendment is not in doubt: Congress meant to raise the minimum and maximum recoveries for closed-end loans secured by real property. There is scant indication that Congress simultaneously sought to remove the $1,000 cap on loans secured by personal property. I Congress enacted TILA in 1968, as part of the Consumer Credit Protection Act, Pub. L. 90-321, 82 Stat. 146, as amended, 15 U. S. C. § 1601 et seq., to “assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit,” § 102, codified in 15 U. S. C. § 1601(a). The Act requires a creditor to disclose information relating to such things as finance charges, annual percentage rates of interest, and borrowers’ rights, see §§ 1631-1632, 1635, 1637-1639, and it prescribes civil liability for any creditor who fails to do so, see § 1640. As originally enacted in 1968, the Act provided for statutory damages of twice the finance charge in connection with the transaction, except that recovery could not be less than $100 or greater than $1,000. The original civil-liability provision stated: “(a) [A]ny creditor who fails in connection with any consumer credit transaction to disclose to any person any information required under this chapter to be disclosed to that person is liable to that person in an amount... of “(1) twice the amount of the finance charge in connection with the transaction, except that liability under this paragraph shall not be less than $100 nor greater than $1,000 _” Pub. L. 90-321, § 130, 82 Stat. 157. In 1974, Congress amended TILA’s civil-liability provision, 15 U. S. C. § 1640(a), to allow for the recovery of actual damages in addition to statutory damages and to provide separate statutory damages for class actions. Pub. L. 93-495, § 408(a), 88 Stat. 1518. Congress reworded the original statutory damages provision to limit it to individual actions, moved the provision from § 1640(a)(1) to § 1640(a)(2)(A), and retained the $100/$1,000 brackets on recovery. In order to account for the restructuring of the statute, Congress changed the phrase “under this paragraph” to “under this subparagraph.” The amended statute provided for damages in individual actions as follows: “(a) [A]ny creditor who fails to comply with any requirement imposed under this chapter . . . is liable to such person in an amount equal to the sum of— “(1) any actual damage sustained by such person as a result of the failure; “(2)(A) in the case of an individual action twice the amount of any finance charge in connection with the transaction, except that the liability under this subpara-graph shall not be less than $100 nor greater than $1,000 ...§ 408(a), 88 Stat. 1518. A further TILA amendment in 1976 applied truth-in-lending protections to consumer leases. Consumer Leasing Act of 1976, 90 Stat. 257. Congress inserted, a clause into § 1640(a)(2)(A) setting statutory damages for individual actions relating to consumer leases at 25% of the total amount of monthly payments under the lease. Again, Congress retained the $100/$1,000 brackets on statutory damages. The amended § 1640(a)(2)(A) provided for statutory damages equal to “(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, or (ii) in the case of an individual action relating to a consumer lease ... 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000 . . . .” Pub. L. 94-240, §4(2), 90 Stat. 260, codified in 15 U.S.C. § 1640(a) (1976 ed.). Following the insertion of the consumer lease provision, courts consistently held that the $100/$1,000 limitation remained applicable to all consumer financing transactions, whether lease or loan. See, e. g., Purtle v. Eldridge Auto Sales, Inc., 91 F. 3d 797, 800 (CA6 1996); Cowen v. Bank United of Tex., FSB, 70 F. 3d 937, 941 (CA7 1995); Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F. 2d 65, 67 (CA4 1983); Dryden v. Lou Budke’s Arrow Finance Co., 661 F. 2d 1186, 1191, n. 7 (CA8 1981) (per curiam); Williams v. Public Finance Corp., 598 F. 2d 349, 358, 359, n. 17 (CA5 1979). In 1995, Congress amended TILA’s statutory damages provision once more. The 1995 amendment, which gave rise to the dispute in this case, added a new clause (iii) at the end of § 1640(a)(2)(A), setting a $200 floor and $2,000 ceiling for statutory damages in an individual action relating to a closed-end credit transaction “secured by real property .or a dwelling.” Truth in Lending Act Amendments of 1995, Pub. L. 104-29, §6, 109 Stat. 274. These closed-end real estate loans, formerly encompassed by clause (i), had earlier been held subject to the $100/$1,000 limitation. See, e. g., Mayfield v. Vanguard Sav. & Loan Assn., 710 F. Supp. 143, 146 (ED Pa. 1989) (ordering “the maximum statutory award of $1,000” for each TILA violation concerning a secured real estate loan). Section 1640(a), as amended in 1995, thus provides for statutory damages equal to “(2)(A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction, (ii) in the case of an individual action relating to a consumer lease ... 25 per centum of the total amount of monthly payments under the lease, except that the liability under this subparagraph shall not be less than $100 nor greater than $1,000, or (iii) in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $200 or greater than $2,000 ....” Shortly after the passage of the 1995 TILA amendments, the Office of the Comptroller of the Currency issued an official policy announcement describing the changes. With respect to changes in TILA’s civil-liability provisions, the announcement stated only that “[p]unitive damages have been increased for transactions secured by real property or a dwelling from a maximum of $1,000 to a maximum of $2,000 (closed-end credit only).” Administrator of National Banks, Truth in Lending Act Amendments of 1995, OCC Bulletin 96-1, p. 2 (Jan. 5, 1996). In 1997, the Seventh Circuit, in Strange v. Monogram Credit Card Bank of Ga., 129 F. 3d 943, held that the meaning of clauses (i) and (ii) remained untouched by the addition of clause (iii). The Seventh Circuit observed that prior to the addition of clause (iii) in 1995, “[c]ourts uniformly interpreted the final clause, which established the $100 minimum and the $1,000 maximum, as applying to both (A)(i) and (A)(ii).” Id., at 947. The 1995 amendment, the Seventh Circuit reasoned, “was designed simply to establish a more generous minimum and maximum for certain secured transactions, without changing the general rule on minimum and maximum damage awards for the other two parts of § 1640(a)(2)(A).” Ibid. As Strange illustrates, TILA violations may involve finance charges that, when doubled, are less than $100. There, double-the-finance-charge liability was $54.27, entitling the plaintiff to the $100 minimum. Id., at 945, 947. II On February 4, 2000, respondent Bradley Nigh attempted to purchase a used 1997 Chevrolet Blazer truck from petitioner Koons Buick Pontiac GMC. Nigh traded in his old vehicle and signed a buyer’s order and a retail installment sales contract reflecting financing to be provided by Koons Buick. 319 F. 3d 119, 121-122 (CA4 2003). Koons Buick could not find a lender to purchase an assignment of the payments owed under the sales contract and consequently restructured the deal to require a larger downpayment. Id,., at 122. On February 25, after Koons Buick falsely told Nigh that his trade-in vehicle had been sold, Nigh signed a new retail installment sales contract. Ibid. Once again, however, Koons Buick was unable to find a willing lender. Ibid. Nigh ultimately signed, under protest, a third retail installment sales contract. Ibid. Nigh later discovered one reason why Koons Buick had been unable to find an assignee for the installment payments due under the second contract: That contract contained an improperly documented charge of $965 for a Silencer car alarm Nigh never requested, agreed to accept, or received. Ibid. Nigh made no payments on the Blazer and returned the truck to Koons Buick. Id., at 123. On October 3, 2000, Nigh filed suit against Koons Buick alleging, among other things, a violation of TILA. Nigh sought uncapped recovery of twice the finance charge, an amount equal to $24,192.80. Koons Buick urged a $1,000 limitation on statutory damages under § 1640(a)(2)(A)(i). The District Court held that damages were not capped at $1,000, and the jury awarded Nigh $24,192.80 (twice the amount of the finance charge). Id., at 121; App. in No. 01-2201 etc. (CA4), pp. 653-655, 670, 756-757, 764. A divided panel of the Fourth Circuit affirmed. 319 F. 3d, at 126-129. The Court of Appeals acknowledged that it had previously interpreted the $1,000 cap to apply to clauses (i) and (ii). Id., at 126; see Mars v. Spartanburg Chrysler Plymouth, Inc., 713 F. 2d, at 67. But the majority held that “by striking the ‘or’ preceding (ii), and inserting (iii) after the ‘under this subparagraph’ phrase,” Congress had “rendered Mars’interpretation defunct.” 319 F. 3d, at 126. According to the majority: “The inclusion of the new maximum and minimum in (iii) shows that the clause previously interpreted to apply to all of (A), can no longer apply to (A), but must now apply solely to (ii), so as not to render meaningless the maximum and minimum articulated in (iii).” Id., at 127. The Court of Appeals therefore allowed Nigh to recover the full uncapped amount of $24,192.80 under clause (i). Judge Gregory dissented. The new clause (iii), he stated, operates as a specific “carve-out” for real estate transactions from the general rule establishing the $100/$1,000 liability limitation. Id., at 130, 132. Both parties acknowledged, and it was Fourth Circuit law under Mars, 713 F. 2d 65, that, before 1995, the $100/$1,000 brackets applied to the entire subparagraph. 319 F. 3d, at 130. Judge Gregory found “no evidence that Congress intended to override the Fourth Circuit’s long-standing application of the $1,000 cap to both (2)(A)(i) and (2)(A)(ii).” Id., at 131. If the $1,000 cap applied only to clause (ii), the dissent reasoned, the phrase “under this subparagraph” in clause (ii) would be “superfluous,” because “the meaning of (ii) would be unchanged by its deletion.” Id., at 132. Moreover, Judge Gregory added, limiting the $1,000 cap to recoveries for consumer leases under clause (ii) would create an inconsistency within the statute: The damages cap in clause (ii) would include the “under this subparagraph” modifier, but the cap in clause (iii) would not. Ibid. We granted certiorari, 540 U. S. 1148 (2004), to resolve the division between the Fourth Circuit and the Seventh Circuit on the question whether the $100 floor and $1,000 ceiling apply to. recoveries under § 1640(a)(2)(A)(i). We now reverse the judgment of the Court of Appeals for the Fourth Circuit. Ill Statutory construction is a “holistic endeavor.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988); accord United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439, 455 (1993); Smith v. United States, 508 U. S. 223, 233 (1993). “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Assn. of Tex., 484 U. S., at 371 (citations omitted); see also McCarthy v. Bronson, 500 U. S. 136, 139 (1991) (statutory language must be read in its proper context and not viewed in isolation). In this case, both the conventional meaning of “subparagraph” and standard interpretive guides point to the same conclusion: The $1,000 cap applies to recoveries under clause (i). Congress ordinarily adheres to a hierarchical scheme in subdividing statutory sections. See L. Filson, The Legislative Drafter’s Desk Reference 222 (1992) (hereinafter Desk Reference). This hierarchy is set forth in drafting manuals prepared by the legislative counsel’s offices in the House and the Senate. The House manual provides: “To the maximum extent practicable, a section should be broken into— “(A) subsections (starting with (a)); “(B) paragraphs (starting with (1)); “(C) subparagraphs (starting with (A)); “(D) clauses (starting with (i)) . . . .” House Legislative Counsel’s Manual on Drafting Style, HLC No. 104-1, p. 24 (1995). The Senate manual similarly provides: “A section is subdivided and indented as follows: “(a) Subsection.— “(1) Paragraph.— “(A) Subparagraph.— “(i) Clause. — ” Senate Office of the Legislative Counsel, Legislative Drafting Manual 10 (1997). Congress followed this hierarchical scheme in drafting TILA. The word “subparagraph” is generally used to refer to a subdivision preceded by a capital letter, and the word “clause” is generally used to refer to a subdivision preceded by a lower case Roman numeral. Congress applied this hierarchy in § 1640(a)(2)(B), which covers statutory damages in TILA class actions and states: “[T]he total recovery under ■this subparagraph . . . shall not be more than the lesser of $500,000 or 1 per centum of the net worth of the creditor . . . .” (Emphasis added.) In 1995, Congress plainly meant “to establish a more generous minimum and maximum” for closed-end mortgages. Strange, 129 F. 3d, at 947. On that point, there is no disagreement. Had Congress simultaneously meant to repeal the longstanding $100/ $1,000 limitation on § 1640(a)(2)(A)(i), thereby confining the $100/$1,000 limitation solely to clause (ii), Congress likely would have flagged that substantial change. At the very least, a Congress so minded might have stated in clause (ii): “liability under this clause.” The statutory history resolves any ambiguity whether the $100/$1,000 brackets apply to recoveries under clause (i). Before 1995, clauses (i) and (ii) set statutory damages for the entire realm of TILA-regulated consumer credit transactions. Closed-end mortgages were encompassed by clause (i). See, e. g., Mayfield v. Vanguard Sav. & Loan Assn., 710 F. Supp., at 146. As a result of the addition of clause (iii), closed-end mortgages are subject to a higher floor and ceiling. But clause (iii) contains no other measure of damages. The specification of statutory damages in clause (i) of twice the finance charge continues to apply to loans secured by real property as it does to loans secured by personal property. Clause (iii) removes closed-end mortgages from clause (i)’s governance only to the extent that clause (iii) prescribes $200/$2,000 brackets in lieu of $100/$1,000. There is scant indication that Congress meant to alter the meaning of clause (i) when it added clause (iii). Cf. Church of Scientology of Cal. v. IRS, 484 U. S. 9, 17-18 (1987) (“All in all, we think this is a case where common sense suggests, by analogy to Sir Arthur Conan Doyle’s ‘dog that didn’t bark,’ that an amendment having the effect petitioner ascribes to it would have been differently described by its sponsor, and not nearly as readily accepted by the floor manager of the bill.”). By adding clause (iii), Congress sought to provide increased recovery when a TILA violation occurs in the context of a loan secured by real property. See, e. g., H. R. Rep. No. 104-193, p. 99 (1995) (“[T]his amendment increases the statutory damages available in closed end credit transactions secured by real property or a dwelling . . . .”). But cf. post, at 75 (SCALIA, J., dissenting) (hypothesizing that far from focusing on raising damages recoverable for closed-end mortgage transactions, Congress may have “focus[ed] more intently on limiting damages” for that category of loans). “[T]here is no canon against using common sense in construing laws as saying what they obviously mean.” Roschen v. Ward, 279 U. S. 337, 339 (1929) (Holmes, J.). It would be passing strange to read the statute to cap recovery in connection with a closed-end, real-property-seeured loan at an amount substantially lower than the recovery available when a violation occurs in the context of a personal-property-secured loan or an open-end, real-property-secured loan. The text does not dictate this result; the statutory history suggests otherwise; and there is scant indication Congress meant to change the well-established meaning of clause (i). * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The finance charge is determined, with certain exceptions, by “the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.” 15 U. S. C. § 1605(a). The dissent adopts a similar structural argument to justify its conclusion that the $100/$1,000 brackets apply only to recoveries under clause (ii). See post, at 70-71. Judge Gregory noted that the phrase “under this subparagraph,” as it appears in § 1640(a)(2)(B), covering statutory damages in class, actions, “indisputably applies to all of subparagraph (B).” 319 F. 3d 119, 132 (CA4 2003). “[T]he most logical interpretation of the statute,” he concluded, “is to read the phrase ‘under this subparagraph’ as applying generally to an entire subparagraph, either (A) or (B), and to read (2)(A)(iii) as creating a specific carve-out from that general rule for real-estate transactions.” Ibid. These congressional drafting manuals, both postdating the 1995 TILA amendment, are consistent with earlier guides. See, e. g., Desk Reference 222 (“Federal statutes ... are always broken down successively into . . . subparagraphs (starting with subparagraph (A)), [and] clauses (starting with clause (i))-”); D. Hirsch, Drafting Federal Law § 3.8, p. 27 (2d ed. 1989) (“Paragraphs are divided into tabulated lettered subparagraphs (‘(A)’, ‘(B)’, etc.) .... Subparagraphs are divided into clauses bearing small roman numerals (‘(i)’, ‘(ii)’, ‘(iii)’, ‘(iv)’) . . . .”); R. Dickerson, The Fundamentals of Legal Drafting §8.25, p. 197 (2d ed. 1986) (“For divisions of a paragraph (called ‘subparagraphs’), use ‘(A),’ ‘(B),’ ‘(C),’ etc_When an additional designated breakdown is necessary, use ‘(i),’ ‘(ii),’ ‘(iii),’ etc.”); J. Peacock, Notes on Legislative Drafting 12 (1961) (paragraphs divided into “sub-paragraphs designated (A), (B), (C),” and subparagraphs further divided into “clauses (i), (ii), (iii)”). E. g., 15 U. S. C. § 1602(aa)(2)(A) (“under this subparagraph”); § 1602(aa)(2)(B) (“under subparagraph (A)”); § 1605(f)(2)(A) (“except as provided in subparagraph (B)”); § 1615(c)(1)(B) (“pursuant to subpara-graph (A)”); § 1637(c)(4)(D) (“in subparagraphs (A) and (B)”). But see § 1637a(a)(6)(C) (“subparagraph” appears not to refer to a capital-letter subdivision). E. g., §1637(a)(6)(B)(ii) (“described in clause (i)”); § 1637a(a)(8)(B) (“described in clauses (i) and (ii) of subparagraph (A)”); § 1640(i)(1)(B)(ii) (“described in clause (i)”). The five separate writings this Court has produced demonstrate that § 1640(a)(2)(A) is hardly a model of the careful drafter’s art. In consumer credit transactions in which a security interest is taken in the borrower’s principal dwelling, the borrower also has a right to rescission under certain circumstances. § 1635. The dissent’s reading, we note, hinges on an assumed alteration in Congress’ design, assertedly effected by the bare addition of “(iii)” and the transposition of “or.” See post, at 71-72, and n. 1. If Congress had not added “(iii)” when it raised the cap on recovery for closed-end mortgages, the meaning of the amended text would be beyond debate. The limitations provision would read: “except that the liability under this subpara-graph shall not be less than $100 nor greater than $1,000, or in the case of an individual action relating to a credit transaction not under an open end credit plan that is secured by real property or a dwelling, not less than $200 or greater than $2,000.” This reading would lead to the anomalous result of double-the-finance-charge liability, uncapped by the fixed dollar limit, under clause (i) for an open-end loan secured by real property, while liability would be capped by clause (iii) at $2,000 for a closed-end loan secured by the same real property. TILA does not in general apply to credit transactions in which the total amount financed exceeds $25,000, but this limit does not apply to loans “secured by real property or a dwelling.” 15 U. S. C. § 1603. Double-the-finance-charge liability under clause (i) for a TILA, violation in connection with an open-end, real-property-secured loan (e. g., a home equity line of credit), could far exceed the $2,000 liability cap under clause (iii) for a TILA violation in connection with a standard closed-end home mortgage. The dissent states that fixed mortgages are more prevalent than home equity lines of credit and that the mean home equity line of credit balance is considerably smaller than the mean first mortgage balance. Post, at 74-75. But even under the dissent’s reading, a borrower stands to collect greater statutory damages if a TILA violation occurs in connection with a home equity line of credit than if it occurs in connection with a home mortgage acquisition loan. According to figures compiled by the Consumer Bankers Association and the Federal Reserve Board, in 2004 the average new home equity line of credit was $77,526, see Consumer Bankers Assn., CBA news release, Home Equity Lines Adjust on Prime Rate Change, Nov. 10, 2004, available at http://www.cbanet.org/news/press% 20releases/home_equity/prime_rate_adjust.htm (as visited Nov. 15, 2004, and available in Clerk of Court’s case file), and about a third of extended credit lines are mostly or fully in use, see G. Canner, T. Durkin, & C. Luckett, Recent Developments in Home Equity Lending, 84 Fed. Res. Bull. 241, 247 (Apr. 1998) (30% of home equity lines of credit 75%-100% in use in 1997). Assuming, as the dissent does, a 10% annual interest rate, the annual finance charge could easily surpass $7,000, and double-the-finance-charge liability would substantially exceed the $2,000 cap prescribed for home mortgage loans. Additionally, the dissent’s observation does not address the anomaly, illustrated by the facts of this case, of providing full double-the-finance-charge liability for recoveries under clause (i), while capping recoveries under clause (iii). Nigh was awarded over $24,000 in damages for a violation involving a car loan. Had similar misconduct occurred in connection with a home mortgage, he would have received no more than $2,000 in statutory damages. 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:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. COPPOLA v. UNITED STATES. No. 153. Argued March 27, 1961. Decided April 17, 1961. William B. Mahoney argued the cause and filed a brief for petitioner. Howard A. Heffron argued the cause for the United States. On the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Wilkey, Assistant Attorney General Miller and Philip R. Monahan. Per Curiam. We brought this case here, 364 U. S. 813, believing that it presented a question under Anderson v. United States, 318 U. S. 350. After hearing oral argument and fully examining the transcript of the proceedings in the trial court, we conclude that the particular facts of the case are not ruled by Anderson. We find no merit in the other argument advanced by the petitioner. Affirmed. 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_crossapp	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. Dorothy R. CANNON, Plaintiff-Appellant, v. The KROGER CO.; United Food and Commercial Workers (UFCW) Union Local No. 278; United Food and Commercial Workers International Union; United Food and Commercial Workers, Local 305, AFL-CIO; United Food and Commercial Workers Union Local 400, Defendants-Appellees. No. 86-1720. United States Court of Appeals, Fourth Circuit. Argued June 3, 1987. Decided Nov. 3, 1987. Petition for Rehearing and Suggestion for Rehearing En Banc Denied Jan. 29, 1988. Richard Monroe Durham (James J. Booker, P.A., Winston-Salem, N.C., on brief) for plaintiff-appellant. Jeffrey Neil Young (Baptiste & Wilder, Washington, D.C., P.C. on brief); M. Ann Anderson (Charles F. Vance, Jr.; C. Daniel Barrett; Womble, Carlyle, Sandridge & Rice; Winston-Salem, N.C., Richard Roe-sel, United Food and Commercial Workers Intern. Union, Washington, D.C., on brief) for defendants-appellees. Before HALL and WILKINSON, Circuit Judges, and SMALKIN, United States District Judge for the District of Maryland, sitting by designation. The order denying petition for rehearing and suggestion for rehearing en banc and opinion of Circuit Judge Murnaghan dissenting from denial of rehearing en banc, will be published in a future volume. K.K. HALL, Circuit Judge: Dorothy R. Cannon, plaintiff in a civil action alleging unfair labor practices by her former employer, The Kroger Company (“Kroger”) and breach of the duty of fair representation by Locals 278, 305, and 400 of the United Food and Commercial Workers Union (“UFCW” or “the Unions”) appeals an order of the district court dismissing her complaint as time bárred, 647 F.Supp. 82. The district court held that the statute of limitations applicable to “hybrid” actions brought, in part, pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 was violated by Cannon’s failure to file a complaint within six months of the allegedly wrongful act. We affirm. I. Cannon, a black female, was employed by Kroger from 1981 until 1985 as a meat clerk in a store located in Winston-Salem, North Carolina. During her tenure with Kroger, the terms and conditions of her employment were governed by two successive collective bargaining agreements executed between Kroger and Locals 305 and 278 of the UFCW. Cannon resigned her position with Kroger on September 7, 1985. On March 7, 1986, six months to the day after she left her position, Cannon sought to initiate a “hybrid” civil action for unfair labor practices and breach of the duty of fair representation against Kroger and the Unions in the Superior Court of Forsyth County, North Carolina. In commencing her action, Cannon employed a mechanism available under the North Carolina Rules of Civil Procedure but which has no counterpart in the Federal Rules. North Carolina Rule 3 allows a plaintiff to postpone filing a complaint by first making application to the court stating the nature and purpose of the action and requesting permission to file a complaint within 20 days. Cannon sought and was granted the extended time. Pursuant to the North Carolina rule, a summons was issued to Kroger and the Unions. In her complaint ultimately filed on March 27,1986, Cannon alleged that during her period of employment, Kroger regularly granted wage increases to white, male employees in excess of the collective bargaining agreement while limiting her to the amount specified in the agreement. She further alleged that Kroger required her to perform additional duties in violation of safety rules and established company procedures. Finally, she maintained that the Unions’ failure to defend her from Kroger’s intolerable and discriminatory acts left her with no alternative but to resign her position. Following receipt of the complaint, Kroger and the Unions removed the action to federal district court. The defendants then moved to dismiss Cannon’s complaint on the ground that it was neither filed nor served within the six-month statute of limitations derived from § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The district court granted the motion for dismissal with prejudice pursuant to Fed.R. Civ.P. 12(b)(6), reasoning that Cannon’s failure to file a complaint within six months of her resignation rendered her action untimely. The court further held that the statutory period could not be extended by the alternative means of commencing an action available under North Carolina law. This appeal followed. II. The cause of action asserted by Cannon is popularly known as a “hybrid” § 301/fair representation claim. The gravamen of such an action is the assertion that an employer has breached its contractual obligations toward an employee under the collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 and that the employee’s union, by failing to protect its member’s rights, has failed to satisfy the duty of fair representation implied by the National Labor Relations Act, 29 U.S.C. § 151 et seq. Clearly, both components of this “hybrid” cause of action involve rights created by federal statute. On appeal, Cannon contends that her action below did not violate the six-month statute of limitations applied by the Supreme Court to “hybrid” § 301/fair representation claims in DelCostello v. International Bro. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). She argues that DelCostello required only that a “hybrid” action be commenced within six months of the alleged wrongful act but did not specify commencement in accordance with the Federal Rules of Civil Procedure. In Cannon’s view, her timely compliance with the appropriate state procedures for initiating a civil action satisfied the dictates of DelCostello. Alternatively, appellant contends that the summons issued on March 7, 1986, pursuant to the North Carolina Rules, was the functional equivalent of a complaint under Fed.R.Civ.P. 8(a), thereby tolling the statutory limitation period on that date. We disagree with both of appellant’s contentions. A “hybrid” civil action in which an employee alleges wrongdoing by both his employer and his union necessarily intrudes into those “consensual processes that federal labor law is chiefly designed to promote—the formation of the ... agreement and the private settlement of disputes under it.” (citations omitted.) DelCostello, 462 U.S. at 171, 103 S.Ct. at 2294, quoting United Parcel Service v. Mitchell, 451 U.S. 56, 70-71, 101 S.Ct. 1559, 1568, 67 L.Ed.2d 732 (1981). Striking a balance between the rights of an aggrieved employee and the substantial federal labor policies at stake demands the application of uniform national procedures. 462 U.S. at 171-72, 103 S.Ct. at 2294. The Court in DelCostello admittedly did not expressly hold that a plaintiff in a “hybrid” action is required to commence an action by filing a complaint in accordance with Fed.R.Civ.P. 3 in order to toll the limitation period. The Court’s announced goal of uniformity would be severely undercut, however, if alternative means of computing elapsed time were available. Moreover, in the recent decision in West v. Conrail, — U.S. -, 107 S.Ct. 1538, 95 L.Ed.2d 32 (1987), the Supreme Court clearly relied upon the Federal Rules to resolve a dispute regarding the six-month limitation period. After West, there can be no question that commencement of a “hybrid” claim brought in district court is to be assessed in accordance with the Federal Rules of Civil Procedure. Unlike appellant, we can perceive no justification for allowing a different result simply because the underlying action is initiated in a state court. The substantive rights involved remain purely federal in nature. Moreover, the choice of a forum in no way diminishes the subtle balance of interests noted in DelCostello as a justification for uniformity. The application of alternative state law procedures must inevitably intrude into the balance and threaten the goal of uniform adjudication. We conclude, therefore, that the statute of limitations applicable to “hybrid” actions runs until the action is properly commenced under the dictates of the Federal Rules of Civil Procedure. III. Appellant’s alternative contention that the state summons issued pursuant to North Carolina Rule 3 was somehow equivalent to a complaint under the Federal Rules is unpersuasive. A valid complaint under the Federal Rules must satisfy, inter alia, the demands of Rule 8(a)(2) by including a “plain statement of the claim showing that pleader is entitled to relief.” The state summons issued to defendants below fell significantly short of this requirement. Under the most liberal interpretation the summons stated nothing more than a conclusory allegation that defendant Kroger had forced Cannon to quit her job. There was absolutely no identification of any specific actions that allegedly violated appellant’s rights and thus no basis on which relief could have been granted. Even under North Carolina state law, the summons is nothing more than a stopgap mechanism for delaying the filing of an actual complaint. We can see no reason for according it any greater dignity in a federal action. IV. For the foregoing reasons, we conclude that the district court did not err in dismissing appellant’s hybrid action as untimely. The judgment of the district court is, accordingly, affirmed. AFFIRMED. . An agreement between Kroger and Local 305 was in effect between December 23, 1979, and January 22, 1983. During the term of the agreement, Local 305 was merged into Locals 278 and 400. A second agreement between Kroger and Local 278 covered the time period between January 23, 1983, and October 25, 1986. . Section 160(b) provides in pertinent part that: "No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made_" . The issue in West turned upon whether the adoption of the § 10(b) six-month limitation period in DelCostello also adopted the requirement in § 10(b) that the complaint be both filed and served within that time. The Court noted that it had borrowed only the time period and that for other procedural questions it "did not intend to replace any part of the Federal Rules of Civil Procedure_” 107 S.Ct. at 1541. The Court, therefore, held that a complaint filed in conformity with Fed.R.Civ.P. 3 within the Del-Costello six-month period was timely. . We assume for purposes of argument that this issue is properly before us even though the record does not clearly disclose that Cannon presented this theory below. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
songer_casetyp2_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. There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - other bankruptcy. Your task is to determine the second issue in the case. 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". ABERLY et al. v. CRAVEN COUNTY, N. C. CRAVEN COUNTY, N. C., v. NATIONAL BANK OF NEW BERN et al. Nos. 3580, 3595. Circuit Court of Appeals, Fourth Circuit. April 3, 1934. Thos. D. Warren and L. I. Moore, both of New Bern, N. C. (Moore & Dunn and Warren & Warren, all of New Bern, N. C., on the brief), for Craven County. R. E. Whitehurst and A. D. Ward, both of New Bern, N. C. (R. A. Nunn, H. P. Whitehurst, and C. L. Abernethy, all of New Bern, N. C., on the brief-), for National Bank of New Bern, Griffin, Schumacher, and stockholders of National Bank of New Bern. W. B. Rouse, of New Bern, N. C., for Aberly and Hargett. Before PARKER and SOPER, Circuit Judges, and WILLIAM C. COLEMAN, District Judge. PARKER, Circuit Judge. The National Bank of New Bern, which we shall refer to hereafter as the old bank, found itself in financial difficulties in the early part of 1929, and on March 20th of that year entered into a contract with the First National Bank of New Bern, which we shall refer to as the new bank. This new bank was organized to take over the business of the old; and from one of the records before us it appears that its capital stock was paid for by funds loaned by Craven county to a certain investment corporation, and loaned by that corporation to the stockholders of the new hank to enable them to subscribe to the stock. Under the contract between the old and new banks, all of the liabilities of the old hank, except liability to stockholders, were assumed by the new bank, and assets of a value $250,000 less than the liabilities so assumed were transferred to it. A demand note for this $250,000 difference was executed by the old bank to the new, and the remaining assets of the old bank were assigned as collateral security to this note. The new bank thereupon began business at the location and with the equipment of the old. The contract and accompanying transfers were executed by the directors of the old bank on March 20, 1929 and a liquidating agent was then ajsiminted for that bank. The action of the directors placing.it in liquidation was approved by a meeting of stockholders the following July. In October of that year the new bank became insolvent and was placed in the hands of a receiver, owing an amount in excess of half a million dollars on the indebtedness of the old bank which it had assumed. Shortly before the receiver of the new bank was appointed, and at a time when its insolvency was evident to its officers, and stockholders, the $250,000 note of the old bank with the accompanying collateral was assigned to Craven county as security for the county funds which it held on deposit; the assignment of the note being made, according to the eounty’s contention, pursuant to a prior agreement. Suit was promptly instituted against the county by the receiver of the new bank to establish his right to the note and the collateral pledged by the old bank to secure it; and the transfer to the County was attacked as preferential. The comity prevailed in this litigation, however, and a decree was entered holding that it was entitled to the note and supporting collateral as security for a deposit account which was definitely adjudged to he $123,123.02. Of this amount it appeal's that $7,323.02 represented sinking funds of the county which were on deposit with the old bank. No appeal was taken from this decree; and no reason appears why it should not be held binding upon the parties. Shortly before the termination of the suit by the receiver against the county, this suit was instituted by the county against the receiver and the old bank and its liquidating agent; and stockholders in that bank were made parties defendant by order of court subsequently entered. The bill alleged the indebtedness of the new bank on account of the deposit of the county, the pledge of the $250,000 note as security therefor, the inability of the county to realize anything in excess of a comparatively small amount on the collateral pledged with it, the necessity of enforcing the liability of the stockholders of the old bank to raise funds to discharge its obligations, the refusal of the Comptroller of the -Currency to appoint a receiver to enforce this liability,-and the refusal of the receiver of the new hank to apply for a receiver to the end that such liability might be enforced. It prayed for the appointment of a receiver for the old bank, the enforcement of the liability of its stockholders for the benefit of creditors, for judgment against the old bank on the $250,000 note, and for other relief relating to the sale of collateral. Answers were filed to the bill in which it was alleged that the $250,000 note was not executed by the old bank in the due course of business; that the new bank had failed to pay the obligations of the old bank which it had assumed to the extent of approximately $500,000; that the note was transferred to the county with a view of creating a preference; and that the county was not a holder thereof in due course. Necessity for the appointment of a receiver or for enforcing the liability of the stockholders of the old bank was denied on the ground that its only possible creditor was the holder of the $250,000 note and that this note was invalid and not collectible because of the failure of the new bank to pay off the obligations of the old. A replication filed by the eounty pleaded the decree in the former ease as establishing the right of the eounty to the $250,000 note, and set forth, among other things, that the suit was brought in behalf of itself and all other creditors of the old bank. The case was referred to a special master and a large volume of testimony was taken; but only a very small part of this has been certified as a part of the record. Additional portions have been certified by the clerk of the court below as addenda; but we cannot consider them, as they have not been made a part of the record by certificate of the judge. The judge below found that the execution and delivery of the $250,000 note by the old bank to the new was as heretofore stated, but held that the note was not “the contract or engagement” of the old bank “incurred in the ordinary course of the banking business.” He further found that the new bank had failed to discharge deposit liabilities of the old to an amount in excess of $500,000, and held that there was a failure of consideration for the note. With respect to the rights of the county as holder, he found that no consideration passed at the time of the pledge to the county; that no prior promise to pledge had been made; that' the pledge had been made after a reasonable time for demand and payment had elapsed and the note had become past due; and that the eounty took it with notice of the equities existing between the maker and payee. He therefore held that the eounty was not a holder of the note in due course, but took it subject to the equities and defenses existing in favor of the old bank. There was a further finding that the transfer to the county was made by the bank in contemplation of insolvency and with intent to create a preference. On these findings and conclusions, a decree was entered dismissing the bill as against the stockholders, and the eounty has appealed. Two of the stockholders also have appealed, contending that the decree dismissing the bill should have been based on additional grounds; but manifestly they cannot appeal from a decree altogether in their favor, which will be sustained if any ground appears in the record which will sustain it. The record which has been certified in connection with their appeal, however, will be considered in connection with the appeal of the eounty, as it is a part of the record before the court below and has been certified as such by the judge. We can dismiss at once all arguments to the effect that the transfer of the note to the county was void because preferential and made in contemplation of insolvency, as this is a question between the county and the receiver of the new bank with which the stockholders of the old bank have no concern. This is a question, moreover, which has been raised and settled in the suit brought by the receiver for that purpose; and, while the decision of the court in that suit may have been erroneous in view of the later decisions of the Supreme Court in the cases of Texas & Pacific R. Co. v. Pottorff, 54 S. Ct. 416, 78 L. Ed. -, and City of Marion v. Sneeden, 54 S. Ct. 421, 78 L. Ed. -, there was no appeal therefrom, and there can be no question as to its binding effect as between the parties. Tait v. Western Maryland R. Co.., 289 U. S. 620, 53 S. Ct. 700, 77 L. Ed. 1405; Id. (C. C. A. 4th) 62 F.(2d) 933. And we can likewise dismiss all contention that the county was a holder of the note in due course. It is clear that the eounty officers knew all about the purpose for which the note was given and the obligations assumed by the new bank as consideration therefor, and certainly the circumstances surrounding the transfer were sufficient to put them on notice that the new bank was on the verge of insolvency and unable to carry out the obligations which it had assumed. The judge’s findings' that the. transfer of the note to the county was without consideration, that its note was to bo deemed past due at that time because it had not been presented for payment within a reasonable time, and that the county was affected with notice of the equities existing between the maker and payee, are binding upon us unless clearly wrong; and there is nothing in the record which would justify us in reversing them. It is clear, therefore, that the county held the note, not as a holder in due course, but subject to any defenses which might have been asserted against it in the hands of the new bank; and the case narrows itself to two questions: (1) Whether the note is invalid for lack of power in the officers of the old bank to execute it; and (2) whether the failure of the new bank to meet the obligations assumed constitutes a defense which the stockholders of the old bank may assert to defeat their statutory liability as stockholders. On the first question it appears that the note was executed as an incident of a sale made of the assets of the bank when it was facing insolvency and in an attempt to save its depositors and stockholders. The power of the directors to make such a transfer of assets and the validity of a note given under such circumstances have been decided too often to justify further discussion of the matter. See Hightower v. American National Bank, 263 U. S. 351, 44 S. Ct. 123, 68, L. Ed. 334; Wyman v. Wallace, 201 U. S. 230, 26 S. Ct. 495, 50 L. Ed. 738; Wannamaker v. Edisto National Bank of Orangeburg (C. C. A. 4th) 62 F.(2d) 696; Scott v. Norton Hardware Co. (C. C. A. 4th) 54 F.(2d) 1047, 1049; Richter v. Laredo National Bank (C. C. A. 5th) 62 F.(2d) 289; City Nat. Bank of Huron v. Fuller (C. C. A. 8th) 52 F.(2d) 870, 872, 79 A. L. R. 71; Harris v. Briggs (C. C. A. 8th) 264 F. 726; Hulse v. Argetsinger (D. C.) 12 F.(2d) 933; Wegman v. National Bank of Commerce (D. C.) 51 F.(2d) 288. On the second question, the determinative facts have not been found by the court below and do not appear from the record before us. All that we feel certain of with respect to this question is that the stockholders of the old bank have not been relieved of their statutory liability as a result of the execution and transfer of the note. But whether the fund created by the enforcement of that liability should go to plaintiff as holder of the note or to depositors in the old bank whose claims for deposits the new bank has failed to pay is a question which should not be determined until all of the facts are fully before the court. If the depositors and creditors of the old bank, with knowledge of the circumstances attending the transfer of assets from the old bank to the new, entered into a novation whereby they not only accepted the new bank as their debtor, but also released the old bank from any obligation to them, then the old bank has suffered no loss as a result of the failure of the new, and has nothing to offset against the note which is its only remaining obligation. If, on the other hand, the depositors of the old bank have not released it from liability for their deposits and it is still obligated to pay them, the failure of the new bank has resulted in loss to the old which it can assert as a defense against the note. See Treadwell v. Fagan (C. C. A. 5th) 68 F.(2d) 550. In the latter alternative, however, the liability of the stockholders of the old bank should be enforced for the benefit of its depositors, who should be made parties to the suit and allowed to prove their claims, and the county would still have sufficient interest in the suit to justify its presence in court by reason, of the sinking fund which it had on deposit with the old bank. As equities which we cannot foresee may arise upon the further hearing of the case, we shall not attempt to direct the action of the court below except to order that the decree appealed from be set aside, and further, proceedings be had in conformity with this opinion, with right to the parties to file additional pleadings and present further evidence. In ease No. 3595, therefore, the decree will be reversed and the cause remanded for further proceedings. In case No. 3580, the appeal will be dismissed. No. 3580, appeal dismissed. No. 3595, reversed and remanded. Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - other bankruptcy? 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_appel1_1_3	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. CAPITAL CITY GAS COMPANY, Appellee, v. PHILLIPS PETROLEUM COMPANY, Appellant. No. 236, Docket 30818. United States Court of Appeals Second Circuit. Argued Dec. 16, 1966. Decided Feb. 14, 1967. Wick, Dinse & Allen, Burlington, Vt., for appellee. F. Elliott Barber, Jr., Brattleboro, Vt., William J. Zeman, Lloyd G. Minter, Chas. H. Purdy, Bartlesville, Okl., for appellant. Before WATERMAN, MOORE and KAUFMAN, Circuit Judges. WATERMAN, Circuit Judge: Phillips Petroleum Company (Phillips) appeals from an order of the United States District Court for the District of Vermont requiring it to continue to supply Capital City Gas Company (Capital City) with liquefied petroleum gas (propane) until May 31, 1967. Phillips is a Delaware corporation. Capital City is a Vermont corporation with its principal place of business at Montpelier, Vermont. Federal jurisdiction is based upon diversity of citizenship. On June 22, 1964, the two companies, continuing a long-time business relationship, entered into a contract for the sale of liquefied petroleum gas by Phillips to Capital City to cover the period from June 1, 1964 to May 31, 1967. The contract contemplated the purchase by Capital City of propane gas between certain specified maximum and minimum quantities per month at a price to be determined by the prevailing market price. Later the contract was modified by a written agreement so as to provide that the price would be eight cents per gallon throughout the life of the contract. The contract contained the following provision: 14. Force Majeure No failuire or omission by Seller in the performance of any obligation of this contract shall be deemed a breach of this contract nor create any liability for damages if the same shall arise from any cause or causes beyond Seller’s control, including but not restricted to: acts of God, war, accident, fire, storm, flood, earthquake, or explosion, acts of or compliance with requests of federal, state, or local government, or any agency thereof, strike, lockout, disputes with workmen, labor shortages, transportation embargoes or failures or delays in transportation, unavailability of suitable tank cars or transport trucks or parts therefor, or exhaustion, reduction, or unavailability of liquefied petroleum gas at the source of supply from which deliveries are normally made hereunder, * * *. (Emphasis supplied.) The contract remained in force and apparently there was no friction between the parties until June 24, 1966, when Phillips addressed a certified mail letter, received June 27, informing Capital City that as of July 1, 1966 it was terminating its propane sales to Capital City and that as of that day it was invoking the Force Majeure provision recited above. Phillips based this action upon its statement that liquefied petroleum gas (propane) was not available to it after June 30, 1966 “at Delaware City, the source of supply from which our deliveries are normally made to you.” In a July 1, 1966 letter Phillips also based its termination upon Capital City’s failure to purchase the minimum contract requirements of propane during the months of May and June 1966. The source of supply at Delaware City, Delaware was Tidewater Oil Company’s Flying A Refinery, also known as Reybold. On July 6, 1966 Capital City filed this action in the court below seeking injunctive relief to prevent Phillips from terminating the contract. On July 6, 1966, the court issued, without notice to Phillips, an ex parte temporary restraining order, effective until July 15, to prevent Phillips from withholding delivery of three railroad tank cars of propane gas already ordered by Capital City for delivery on July 20, 1966. On July 14 and 15, 1966 the court held a hearing, upon notice, for the purpose of determining whether to continue the temporary restraining order or to grant a preliminary injunction. On July 14 Phillips filed its answer to the complaint. When the case was called neither party was aware that anything other than the proceeding noticed in the order was to be held, and that a full determination on the merits would be forthcoming in normal course on complaint and answer at a later date. Nevertheless, the court proceeded to take testimony and then issued a judgment order that Phillips continue to supply Capital City with propane for the entire remaining period of the contract at the price of eight cents per gallon. This order is not designated as either a temporary or permanent injunction order, but is only designated “Judgment Order.” Whatever it might have been labeled, it is a permanent injunction because it grants Capital City all the relief it might ultimately be entitled to and makes no provision for further hearings. Of course the judgment order cannot be permitted to remain in force as a permanent injunction; Phillips has a clear right to have a full hearing on the merits of the complaint, for the order was granted upon a hearing noticed for a temporary injunction only, and no warning was given to the parties that a permanent disposition of the case was likely. Defendant’s answer controverting allegations in the complaint and setting up, additionally, three affirmative defenses, was filed that very day. It is true that permanent relief might be granted after a hearing upon a temporary injunction if no genuine issues of fact are found to be present. Standard Oil Co. of Texas v. Lopeno Gas Co., 240 F.2d 504 (5 Cir. 1957); or if the court had ordered a consolidation of the hearing for temporary relief with the trial on the merits. Fed.R. Civ.P. 65(a)(2), effective July 1, 1966. In this case, however, it is clear to us that there are important genuine factual issues involving a determination of where Phillips’s “normal” source of supply was for the propane gas shipped to Capital City and whether there had been a waiver by Phillips of the minimum quantity of propane Capital City was required to purchase of Phillips under the contract. The noticed hearing upon temporary relief was never consolidated with a trial on the merits for permanent relief although the court considered evidence put in by both parties. As pointed out above, the parties were not made aware that final relief was to be granted. Because of the different scope of possible relief, the difference in types of evidence admissible, and the difference in burden of proof required, compare Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2 Cir. 1953) with Allen v. Pyrene Mfg. Co., 111 F.Supp. 819 (D.N.J.1953), between permanent and temporary injunctive relief, a party is entitled to notice that permanent rather than temporary relief is being determined. Since Phillips was not given such notice in this case, the permanent injunction must be vacated. We must next consider whether the district court’s order should remain in force as a temporary injunction until the full evidentiary hearing on the merits of the action on remand. The most significant condition which must be present to support the granting of a temporary injunction is a showing that if the relief is not granted irreparable injury during the pendency of the trial will result. Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214 (2 Cir. 1953); Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94 (4 Cir. 1950). The evidence in this case does not demonstrate that there is a threat of irreparable injury during the pendency of the action. From the evidence thus far before the court it seems clear that Capital City is able to buy propane gas on a current basis from other sellers of the product. Any injury suffered from having to make such purchases at current prices and costs is compensable by money damages if, on the merits of its complaint, Capital City is ultimately successful. When we turn to the merits of the controversy we see that Phillips presented two reasons for terminating its contract with Capital City; the failure of Capital City to purchase the minimum amounts required by the contract, and the failure of its “normal” source of supply for propane gas. As to the first of these, the district court, upon its consideration of the limited evidence produced at the hearing, found that the minimum quantity requirements of the contract were waived by the action of Phillips and therefore the requirements were no longer enforceable. There was evidence of an oral agreement between the parties that the minimum requirement would not be enforced and evidence that Phillips made no attempt to enforce this provision until it wished, for another reason, to cancel the contract. Under these circumstances, we cannot say that the finding of the district court that the requirement was waived was clearly erroneous, Fed.R. Civ.P. 52(a), but the parties should have a full opportunity to explore this issue further if evidence not yet in the case is available. The attempt to cancel the contract by invoking the provision entitled “Force Majeure” presents more difficulty. The district court concluded that this provision was not available to Phillips because no normal supply point had been designated under the contract, Phillips had supplied Capital City from a number of different sources, and the failure of supply was not a “force majeure.” We think the failure to designate a normal source of supply in the contract was not fatal to the effectiveness of the provision. The clause “source of supply from which deliveries are normally made hereunder” (emphasis added) would indicate that the normal source of supply was to be determined by experience under the contract. Nor would the fact that Capital City was supplied from more than one source render the provision inoperative if it could be demonstrated upon a full evidentiary hearing that the source lost was the normal supply point. That a source is the normal one does not mean that it is the exclusive source but only that it is the usual, customary, or habitual one on a long-run basis. If Phillips’s evidence, including the evidence already presented at the prior hearing, Fed.R. Civ.P. 65(a)(2) establishes this, then the provision becomes operative and invokable. Nor is there any merit to the position that the source of supply must be lost in a manner which would be considered a true “force majeure” such as an act of God, see Pacific Vegetable Oil Corp. v. C. S. T. Ltd., 29 Cal.2d 228, 174 P.2d 441 (1946), merely because the contract provision was entitled “Force Majeure.” The operative language of the provision clearly contemplates just such an occurrence as the one before us. While it might have been improvident for Capital City to have agreed to such a condition in the contract, it should not be the function of a court, where there is no ambiguous language and the meaning of the contract term is provable by evidence of an historical course of action by the parties, to reform the agreement. Although the court below found that plaintiff is a public service corporation and believed that because of that circumstance plaintiff would be more subject to a multiplicity of suits than another corporation might be, it appears to us that whether plaintiff is a public service corporation is quite immaterial when the question for judicial determination is the meaning and effect of a term used in a contract the corporation freely entered into. An examination of the situation prompts us to believe it best to remand the case to the court below for a hearing upon the merits of all issues in the case that are well-pleaded. Of course the evidence already taken at the July 14-15 hearing need not be repeated, Fed.R. Civ.P. 65(a)(2). We have carefully considered the position the parties will be in upon the receipt by the district court of our mandate, and we are of the belief that it is also best to adjudge that the present judgment order below be vacated in its entirety and the injunction contained therein dissolved. Any assessment for costs or damages suffered by appellant because of the injunction should await final disposition and judgment of the case on its merits. We urge that the district judge adopt a suggestion by appellee that the case be set for a final hearing at an early date. The judgment order below is vacated and the cause remanded for proceedings not inconsistent with the within opinion. . The restraining order issued July 6, 1966 gave notice to defendant as follows: Now Thebefobe, on motion of the Plaintiff it is ordered that the Defendant, Phillips Petroleum Company, its agents, successors, servants and employees, and all persons acting by, through or under their order, be and they are hereby restrained until the 15 day of July, 1966 from invoking the force majeure clause so as to halt the delivery of three railroad tank cars of propane gas which is ordered for July 20, 1966. This temporary restraint is on condition that a bond be filed by Plaintiff herein in the sum of $5000.00 dollars. It is further Ordered that hearing on continuation of this Temporary Restraining Order or granting of a Temporary Injunction be held at the United States Courtroom, Federal Building, Brattleboro, Vermont on July 14, 1966 at 4:00 P.M., E.D.S.T. When the July 14 hearing was called the following took place: The Court: You may proceed, Mr. Dinse. Mr. Dinse: May it Please the Court, as I understand it, under Rule 65, the purpose of this hearing is either for continuance of the temporary restraining order, or for a hearing on the preliminary injunction? The Court: Right. Mr. Dinse: We are prepared to do either. I think the first is largely a matter of pleadings that have already been submitted, whereas, if we are talking about a preliminary injunction it is a question of evidence being presented to the Court. The Court: What do you say, Mr. Barber? Mr. Barber: Well, we feel, Your Honor, that the temporary order ran out under the Rule 65-B by its own terms and that at this time, there is nothing before the Court, excepting a Petition for a Temporary Order and that they have. The Court: That is, I think that may be so, unless the parties agree to an extension of time of restraining order, otherwise we will proceed to consider the question of a temporary injunction. . See definition of “normal” in Restatement (Second), Torts § 302, comment e (1965); In re New Jersey Power & Light Co., 9 N.J. 498, 89 A.2d 26, 41 (1952). 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_respond2_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 second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. BELLOWS v. PORTER et al. No. 14683. United States Court of Appeals Eighth. Circuit. Jan. 29, 1953. . Kenneth E. Bigus, Kansas City, Mo. (John E. Honsinger, Krigel, Honsinger & Bigus, Ralph M. Jones and Blackmar, New-kirk, Eager, Swanson & Midgley, Kansas City, Mo., were with him on the brief), for appellant. Arthur J. Doyle, Kansas City, Mo. (Spencer, Fane, Britt & Browne, Kansas City, Mo., were with him on the brief), for appellees. Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges. GARDNER, Chief Judge. Appellant, who was plaintiff below, alleged in his complaint two causes of action. In his first cause of action he sought specific performance of a written option to purchase his stock in the Electra Manufacturing Company. He alleged that at the times mentioned in the complaint he was a stockholder of Electra Manufacturing Company and that defendants were likewise stockholders of said company and the officers and directors thereof; that in March, 1946, plaintiff became the owner of one-third of the stock of the company, and defendant J. F. Porter became the owner of the other two-thirds of said stock; that Porter secured from plaintiff a written option by the terms of which Porter acquired the privilege of purchasing plaintiff’s stock within ten years from the date of option at the book value of the stock; that as a part of their agreement plaintiff was to become president, director and manager of the corporation but. Porter took from plaintiff his written resignation, undated, as president, director and manager, ' which Porter had the right to invoke at any time. It is then alleged that the written option was modified by a contemporaneous oral-agreement that in the event that Porter should exercise his right to file plaintiff’s, resignation as president, director and manager of the corporation, he would simultaneously exercise his (Porter’s) option to. purchase plaintiff’s stock. Plaintiff alleged-that he had fully performed all the requirements of the contract on his part to be performed- but' that defendant Porter had accepted and filed plaintiff’s resignation as president, director and manager,, but has failed and refused to punchase and' pay plaintiff the book value of his stock,, the value of which is alleged to be approximately $30,000. He asks specific enforcement of the contract. In his second cause of action plaintiff sought damages for an alleged dilution of the book value of his stock as the result of the refinancing of the Electra Manufacturing Company by the issuance of an additional one thousand shares of common-stock; that this refinancing was unjustified, was not in good faith, nor for the interest of the corporation, but for the benefit of defendant J. F. Porter as majority stockholder. By this cause of action plaintiff sought to recover damages in the sum of $20,000 besides punitive damages. Defendant’s answer denied that there was. any modification of the written option agreement; denied that there was any bad' faith in the refinancing of the corporation; alleged that plaintiff had been given a preemptive right to purchase his portion, of the new stock. While one cause of action was in the nature of a suit in equity, the other was an action for damages and a jury was impanelled to try the issues. At the close-of all the evidence the court dismissed the first cause of action for want of equity and directed the jury to return a verdict in favor of defendants on both causes of action. From the judgment entered plaintiff prosecutes this .appeal alleging in substance; that (1) the court erred in dismissing the first cause of action for want of equity; (2) the court erred in not admitting plaintiff’s Exhibit 3 as evidence of an independent fact pertinent to the issues; (3) the court erred in excluding certain evidence proffered by plaintiff as to charges of Methods Engineering Counsel for the same services performed by plaintiff; (4) the court erred in refusing to submit to the jury the issue of defendants’ alleged guilt in defrauding plaintiff by diluting the value of his stock. Although a jury was impanelled the first alleged cause of action was triable to the court. In this cause of action plaintiff sought the specific enforcement of a contract. Generally speaking, a court of equity will not specifically enforce a contract unless it is so certain and definite in its terms as to leave no reasonable doubt as to what the parties intended. In the instant case plaintiff by his pleadings, claimed that the written option was modified by a contemporaneous oral agreement. We shall first consider the testimony produced by plaintiff on this issue. The plaintiff did not testify definitely that there was any such oral agreement between the parties. Referring to his conversation with Porter relative to the written option plaintiff testified: “Yes, this enables you Mr. Porter to buy my stock at the book value when you wish to do so, but I don’t see how it protects me if our connections were severed in order for me to get the book value for my stock. I was assured then that he believed in an incentive plan and definitely did not want a manager of the business without incentive, .and about the only way he could do it would be for this manager to have •some of the common stock of the company ; he couldn’t give this much more to someone else without losing control ■of the business himself, the common •stock of the business, so therefore in ■order to take care of my successor he would need to have my stock. * * * Again he assured me of his intent of taking up the option simultaneously with my leaving, and the need for it.” This alleged conversation took place after the written contract had been signed. Porter made no promises that would effect a change in their written contract. He simply, in the words of the plaintiff, “assured” him of his then plan to take up the option if and when he made effective the resignation. A mere assurance that a party may act in a certain matter, standing alone, can not be converted into a contract. The rule is stated in Williston on Contracts, Vol. 1, Sec. 26, page 32, as follows: “Since an offer must be a promise, a mere expression of intention and general willingness to do something on the happening of a particular event or in return for something to be received does not amount to an offer.” The applicable principle is stated in Page on Contracts, Vol. 1, 2nd Ed., Sec. 77, as follows: “A declaration of intention to act in a certain way which does not show that the party who makes such declaration promises to act in such a way or intends to incur legal liability obliging him to act in such a way is not an offer which can be accepted so as to make contract.” The expression of an intention to do an act is not an offer to do it. Porter did not promise to do or to refrain from doing anything. He simply forecast what he might do in the future. The transaction is lacking in the elementary essentials of a binding contract. In any event it is not so accurate and certain as to warrant a court of equity to require its specific performance. If, however, the words of the parties be construed to constitute an oral agreement that Porter would, if he filed plaintiff’s resignation, simultaneously exercise his option to purchase plaintiff’s stock, then such an agreement made a very substantial change in the written contract between the parties. Under the written contract Porter had the right at any time within ten years to purchase this stock at its book value. He was, however, absolutely under no obligation to do so. If this oral agreement as construed by plaintiff be given effect he would be required to exercise it, not within the ten years provided by the written contract, but at the time he might accept plaintiff’s resignation. ' The parol evidence rule is one of substantive law and as the transaction here involved took place in the State of Missouri the law of Missouri is controlling. The trial court was of the view that the evidence of this so-called subsequent oral agreement could not be given the effect of modifying the written contract and we think this view is sustained by the decisions of the appellate courts of Missouri. Hickman v. Hickman, 55 Mo.App. 303; Rigler v. Reid, 186 Mo.App. 111, 171 S.W. 952; Fanchon & Marco Enterprises v. Dysart, Mo.App., 193 S.W.2d 953. In the first cited case it was held that a contemporaneous oral agreement that a grantor in a general warranty deed was to remain in possession of the premises and enjoy the profits thereof was inconsistent with the deed itself which purported to convey the title and was in contradiction of the covenants of the deed. In the course of the opinion the court said: “The operative effect of the deed was, of course, to place the grantees in the possession and profits of the land; the evidence admitted was a restriction of this effect of the deed. And having this effect it should not have been admitted. The rule permit-' ting evidence to vary the consideration of a deed is limited to such evidence as is consistent with the operative effect and purpose of the deed. ‘Its legal import can not be varied.’ ” In Rigler v. Reid, supra, it was contended that plaintiff had been given the right to rescind a contract to purchase corporate stock at the time he purchased the same. In the course of the opinion the court said [186 Mo.App. 111, 171 S.W. 954]: “Obviously this is but an attempt to vary by parol the terms of a written contract plain and explicit on its face. The evidence concerning this matter is to be rejected entirely as of no avail here.” - In the instant case plaintiff claimed that Porter who held a written option to purchase plaintiff’s stock made a contemporaneous oral agreement requiring him to exercise the option upon acceptance of plaintiff’s resignation. In effect he asked for specific performance of the option agreement as altered, varied and modified by the alleged oral agreement. The option was a formal, written document signed by both parties. As has been observed it placed no duty on Porter to purchase the stock upon the happening of any contingency,, nor at all. The alleged oral agreement materially changed this option by requiring Porter to purchase the stock upon the happening of a certain contingency. In Fanchon & Marco Enterprises v. Dysart, supra [193 S.W.2d 955], the court considered the effect of an alleged oral agreement modifying an option agreement to-purchase certain stock. The agreement did not require the owner of the stock to-offer it for sale but provided that if the-owner should “desire to sell such stock”,, then the plaintiff would have the right of first refusal. In that case plaintiff sought specific performance of the agreement as. he claimed it had been modified by a contemporaneous oral agreement requiring the owner to offer the stock for sale. Plaintiff there contended that at the time of the execution of the option agreement the owner orally agreed with the plaintiff 'that upon acquisition of the stock the owner would offer it for sale. The court held that “such an agreement would have been at variance with the plain and unambiguous, wording of the contract as written and executed by -the parties, which must prevail.” It is argued by plaintiff that evidence of the alleged contemporaneous agreement was admissible as showing the consideration for entering into the option agreement. Of course, the actual consideration for a contract may usually be shown by parol evidence, provided, however, that such proffered evidence is not contradictory of the executory provisions contained in the contract. Watkins Salt Co. v. Mulkey, 2 Cir., 225 F. 739, 744. In the course of the opinion in that.case it is said: “It is true that for some purposes parol evidence can be introduced to explain or amplify the consideration recited in a written contract; but this exception to the general rule does not permit proof of an oral agreement for the purpose of imposing an affirmative obligation on one of the parties of which there is no indication or suggestion in the written contract. If that were to be permitted on the theory of an inquiry into the consideration of the contract, the rule respecting the finality of written contracts would obviously be abrogated.” The alleged oral agreement here would impose an affirmative obligation upon Porter in direct contradiction to the positive terms of the written contract. We conclude that there was no error in dismissing plaintiff’s first cause of action for want of equity. Plaintiff, in his points to be argued, charges error in not admitting in evidence certain exhibits and in excluding testimony as to certain charges of another concern for the same character of services performed by plaintiff. These assignments do not refer to any page or pages of the record where the ruling may be found. The questions propounded are not reproduced and what objections were interposed are not shown, as required by Rule 11 of this Court. These points to be argued simply invite the Court to search the record for error and must therefore be disregarded. It is next urged that the court erred in directing a verdict in favor of the defendants on the second cause of action. In this cause of action plaintiff sought damages for an alleged dilution of the book value of this stock as a result of the refinancing of the Electra Manufacturing Company by issuing an additional 1,000 shares of common stock. It is charged that such refinancing was unnecessary, was not in good faith nor in the interest of the corporation, but was done wrongfully at the insistence of the defendant J. F. Porter, a majority stockholder, for his own interest and profit. A review of the financial condition of the company at the time of the so-called refinancing shows that the company had paid no dividends but had operated at a net loss of $43,052 in 1948 and at a net loss of $35,587 in 1949. Profit and loss statements indicated substantial annual net losses. Its assets consisted mainly of inventory, machinery, jigs, dies and tools. Its current liabilities amounting to approximately $183,000, consisted mainly of notes payable on demand which if demanded would have resulted in a forced liquidation. There was no evidence that such refinancing was not required, nor is there any evidence that it was not done in the interest of the corporation. Neither was there any evidence of bad faith nor that the refinancing was to the profit of the defendant Porter, and there was no evidence of fraud or breach of trust. Porter as a majority stockholder had control of the corporation. When the new stock was issued plaintiff was offered the opportunity of purchasing a one-third of it, which was his derivative right. This he declined to do and Porter purchased the entire block of stock and in payment released the corporation’s indebtedness to him of $100,000'. It is, however, urged that plaintiff was not financially situated so that he could purchase the stock allottable to him. The trial court in referring to this argument suggests that if the stock was as valuable as plaintiff' claims., it could have been pledged as security, thus enabling plaintiff to make the purchase, but regardless of this suggestion we think the transaction was certainly regular on its face and there was no evidence of breach of trust or of fraud by defendants. In Gamble v. Queens County Water Co., 123 N.Y. 91, 25 N.E. 201, 202, 9 L.R.A. 527, the New York court considered a case wherein plaintiffs as minority stockholders sought relief against the majority. In the course of the opinion in that case the court, among other things, said: “ * * * To warrant the interposition of the court in favor of the minority shareholders * * , where such action is within the corporate powers, a case must be made out which plainly shows that such action is so far opposed to the true interests of the corporation itself as to lead to the clear inference that no one thus acting could have been influenced by any honest desire to secure such interests, but that he must have acted with an intent to subserve some outside purpose, regardless of the consequences to the company, and in a manner inconsistent with its interests.” Plaintiff points to the fact that Porter purchased the additional 1,000 shares of stock as a breach of trust. There is no doubt that the company was relieved of an indebtedness of $100,000 by the issuance of this stock, nor is there any suggestion that plaintiff would have purchased any part of the 1,000 shares; in fact, he declined to make such purchase. We think plaintiff could not hope to recover unless he established that the purchase of this stock by Porter was a breach of trust and tainted with fraud. The mere circumstance that the stock was issued to the majority stockholder was not of itself sufficient to invalidate the transaction. Dunlay v. Avenue M Garage & Repair Co., 253 N.Y. 274, 170 N.E. 917; Schramme v. Cowin, 205 App.Div. 20, 199 N.Y.S. 98, 100. In Schramme v. Cowin, supra, the court among other things said: “Some disposition must be made of the stock not taken under the right of participation, and the stockholders have a right to fix the terms of subscription and distribution of the stock not subscribed for to suit themselves, and as they desire, for the best interests of .the corporation which they own, subject only to the right of each stockholder to a pro rata participation in the increase. * * “That some portion of the avails of the increased capital will be used to pay honest obligations of the company, even if to some extent those obligations are owed to stockholders other than this plaintiff, shows no lack of good faith”. The contention that plaintiff was not financially able to purchase any of this additional stock did not impress the trial court as a substantial contention. The same question was apparently urged in Schramme v. Cowin, supra, and in referring to plaintiff’s financial inability the court said: “The plaintiff claims that this procedure oil the part of the majority stockholders is for the purpose of depleting his interest in the corporation, because, he states, it is well known to the others that he has not the means to buy his pro rata share. * * * If the stockholder is not so situated as to take and pay for the stock himself, he is entitled to sell the right to anyone who could.” We think there was no substantial evidence to support plaintiff’s allegations in his second cause of action and hence the court committed no error in directing a verdict in favor of the defendants. The judgment appealed from is affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
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. John J. DONNELLY, Petitioner, v. Honorable Barrington D. PARKER et al., Respondents. No. 73-1259. United States Court of Appeals, District oi( Columbia Circuit. Aug. 21, 1973. Charles B. Sullivan, Jr., Washington, D. C., was on the petition for writ of mandamus for petitioner. Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Peter R. Reilly, Asst. U. S. Attys., were on the opposition to the petition for respondent Parker. Philip N. Margolius, Washington, D. C., was on the opposition to the petition for respondent Kunz. Calvin H. Cobb, Jr., and William G. Christopher, Washington, D. C., were on the opposition for respondent Ferry & Co., Inc. Before FAHY, Senior Circuit Judge, and ROBINSON and ROBB, Circuit Judges. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: This case is before the court on a petition for a writ of mandamus directing the Honorable Barrington D. Parker, a United States District Judge for the District of Columbia, to order physical and mental examination of Catherine W. Kunz, the .plaintiff named in an action brought against petitioner and another in the District Court. Judge Parker denied petitioner’s motion for the examinations, and the validity of that ruling is a subject of lively argumentation here. We find it unnecessary to enter the debate on that score for we accept the further contention that, in the circumstances presented here, the ruling is not reviewable by way of mandamus. We accordingly deny the writ. I Petitioner is an attorney practicing in the District of Columbia. He was joined as a party defendant in a suit filed in the name of Mrs. Kunz, a former client. The complaint therein alleges that petitioner caused an unauthorized disposition to be made of securities owned by Mrs. Kunz, and it seeks a return of the securities or damages. Petitioner defends on the ground that Mrs. Kunz gave him ownership of the securities in partial payment of a fee for services rendered in her behalf. Petitioner also says that Mrs. Kunz was satisfied with the services, and that she is not the moving spirit behind the litigation. In fact, asserts petitioner, subsequent to completion of the services, her health deteriorated to the point that she lacked capacity to bring the action. That Mrs. Künz has been victimized by sudden and serious illness is conceded. The discord, rather, is over the condition in which the illness has left her and its impact upon the proceeding. The dispute ripened for judicial consideration when petitioner gave notice that he would take Mrs. Kunz’ deposition. Her counsel then moved for an order barring that activity on the ground that she was “unable to withstand the rigors of a deposition and is further in such a state of mental and physical debility that she is unable at the present time to answer questions concerning this matter.” The .motion was supported by the affidavit of Mrs. Kunz’ attending physician stating that she “is not physically or mentally able to undergo an oral deposition and may not be fit to do so for some time to come.” The affidavit added that Mrs. Kunz “is approximately 76 years old and the rigors of an oral deposition at this time would endanger her health and life.” Judge Parker granted the motion, and the deposition was thus precluded. Promptly thereafter, petitioner filed his own motion for an order directing physical and mental examinations of Mrs. Kunz. The motion warned that in the event that the examinations disclosed mental disability, petitioner would move to dismiss the lawsuit as spurious. The motion was accompanied by petitioner’s affidavit stating his belief that the suit had been filed without Mrs. Kunz’ authority. The motion was opposed on grounds that Mrs. Kunz’ physical-mental condition was not in controversy, and that good cause for the examinations had not been shown. The opposition also claimed that Mrs. Kunz was competent when she obtained counsel and authorized him to sue. Judge Parker denied the motion and petitioner, now invoking the All Writs Act, seeks relief at the hand of this court. II As the Supreme Court admonishes, “[t]he peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferi- or court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” That is not to say, however, that every jurisdictional excess or omission will support a call for mandamus against a federal judge. For “[w]hile the courts have never confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ it is clear that only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” And while in an unusual case mandamus may lie to enforce the performance of a judicial responsibility, it is well settled that it cannot be used as a substitute for appeal. The proponent of mandamus has “the burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Plainly, in the case at bar, the District Judge did not exceed his jurisdiction — in any real sense of the word. Capacity of an individual, not acting in a representative character, to sue or be sued in the federal courts is ordinarily to be determined by the law of his domicile. The record before us does not permit a satisfactory conclusion as to where Mrs. Kunz is domiciled or, of course, as to just what her mentality may be, but these matters are of little moment to jurisdiction. If by the law of her domicile she can sue irrespective of actual mental incompetence, she may do so in any federal court. But even if the domiciliary law undertook to withdraw that attribute because of mental disability, litigation of her rights in the District Court is still to be governed by Federal Civil Rule 17(c). That rule provides that “[t]he court shall appoint a guardian ad litem for an . incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the . . . incompetent person.” So, state law may confer but not deny capacity to sue or defend federally, and the only effect of a party’s incompetence upon maintenance of the action is the possible need for appointment of a guardian ad litem or entry of a protective order. In no event is federal jurisdiction to entertain the cause diminished. Ill The only other claim open to petitioner was that the circumstances put Judge Parker under a duty to issue the examinatorial order sought. The evidence of the poor state of Mrs. Kunz’ health could, on petitioner’s challenge, have presented the occasion for an inquiry into her capacity to understand the meaning and effect of the litigation being prosecuted in her name. Beyond that, despite the earlier ruling adverse to petitioner’s effort to depose Mrs. Kunz, he was entitled to a fair opportunity to contest the affidavit averring that an attempt to do so would be unwise. And surely a court-ordered physical-mental examination of Mrs. Kunz, conducted under appropriate safeguards, might have developed important information to serve both of those purposes, and thus to materially advance the progress of the suit toward a final judgment on the merits. In the present procedural posture of the case, however, these considerations are beside the point. They do not survive the threshold question whether the contested ruling can now be reviewed in a mandamus proceeding or whether review must await the District Court’s final disposition. As the Supreme Court has observed, “[a] 11 our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court.” Mandamus “does not ‘run the gauntlet of reversible errors’ ” ; it “may not be used to thwart the congressional policy against piecemeal appeals.” Only where an appeal can promise no more than “a clearly inadequate remedy” may the remedy of mandamus be resorted to. The order denying the examinations, and foreclosing the discovery which petitioner sought thereby, was interlocutory and nonappealable. The cases denying review of discovery orders by mandamus are legion. Petitioner has not shown, nor are we able to perceive, any peculiar circumstance which would set this case apart as truly unusual. On the contrary, the most that can be urged is that Judge Parker erred in applying the standards for physical-mental examinations to the situation displayed, and mandamus simply does not reach to such an error. The question is not whether petitioner can obtain review of the ruling on the examination issue, but whether he can do so now. Should petitioner’s defensive efforts in the District Court prove to be ultimately unsuccessful, he can litigate that ruling, if unchanged, on an appeal from the final judgment. No rights will be jeopardized, no irreparable injury will be suffered, nor will any position be irreversibly compromised. To be sure, petitioner may incur added expense, encounter added delay and perhaps even be subjected to an unnecessary trial, but “that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable.” In sum, “[t]he peremptory common-law writs are among the most potent weapons in the judicial arsenal,” and “[a]s extraordinary remedies, they are reserved for. really extraordinary causes.” The case before us is not of that character. The writ of mandamus which petitioner seeks must accordingly be denied. Writ denied. . But see text infra at notes 13-19. . “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” Fed.R.Civ.P. 35(a). . See note 2, supra. See also Schlagenhauf v. Holder, 379 U.S. 104, 116-122, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). . Counsel filed in the District Court an affidavit stating that Mrs. Kunz, while lucid, had personally appeared in his office and affirmed the allegations on which the suit is founded. Counsel’s theory is that notwithstanding her subsequent illness, he had full authority to proceed in her behalf. But see note 20, infra. . “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (1970). . Petitioner joined Mrs. Kunz and his code-fendant with Judge Parker as corespondents to the petition for mandamus. He now asks for an order requiring counsel for Mrs. Kunz to show his authority to represent her here. The cornerstone of this request is the premise which is basic to petitioner’s bid for mandamus — that Mrs. Kunz may be mentally incompetent — and from this petitioner argues that if in fact she is incompetent, her counsel’s authority has terminated. See note 20, infra. We have undoubted power to require counsel before us to demonstrate their authority, e. g., Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 319, 47 S.Ct. 361, 71 L.Ed. 658 (1927), but the circumstances militate against an exercise of discretion to require it here. Mrs. Kunz’ physical-mental condition remains a burning issue in the District Court; indeed, it may be the pivot upon which much of the case on the merits will turn. That court is the forum in which a resolution of the issue should be undertaken in the first instance. Moreover, this court is not equipped to embark upon the kind of evidentiary exploration which a controversy of this sort obviously demands. Counsel should be permitted to continue his representation, both here and in the District Court, until the question can suitably be determined there. . Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). See, to the same effect, Schlagenhauf v. Holder, supra note 3, 379 U.S. at 109-110, 85 S.Ct. 234; Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106 (1953). . Will v. United States, supra note 7, 389 U.S. at 95, 88 S.Ct. at 273, quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). See, to the same effect, Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). . E. g., McClellan v. Carland, 217 U.S. 268, 279-282, 30 S.Ct. 501, 54 L.Ed. 762 (1910) (refusal to proceed with case) ; In re Winn, 213 U.S. 458, 465-468, 29 S.Ct. 515, 53 L. Ed. 873 (1909) (refusal to remand case) ; In re Grossmayer, 177 U.S. 48, 49-50, 20 S.Ct. 535, 44 L.Ed. 665 (1900) (refusal to take jurisdiction) ; Ex parte Schollenberger, 96 U.S. (6 Otto) 369, 374-378, 24 L.Ed. 853 (1878) (refusal to take jurisdiction) ; Stafford v. Union Bank, 58 U.S. (17 How.) 275, 283-284, 15 L.Ed. 101 (1854) (refusal to issue execution) ; Life & Fire Ins. Co. v. Wilson, 33 U.S. (8 Pet.) 291, 301-304, 8 L. Ed. 949 (1834) (refusal to sign judgment) ; Yablonski v. UMW, 147 U.S.App.D.C. 193, 195, 454 F.2d 1036, 1038 (1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed. 2d 816 (1972) (refusal to follow mandate). . See discussion in text infra at notes 23-26. . Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 384, 74 S.Ct. at 148, quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899). Accord, Will v. United States, supra note 7, 389 U.S. at 96, 88 S.Ct. 269. . As the Court stated in Will v. United States, supra note 7, 389 U.S. at 98 n. 6, 88 S.Ct. at 275, it will not do “to argue that a judge has no ‘power’ to enter an erroneous order. Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. Neither ‘jurisdiction’ nor ‘power’ can be said to ‘run the gauntlet of reversible errors.’ Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147 [98 L.Ed. 106] (1953). Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as ‘abuse of discretion’ and ‘want of power’ into interlocutory review of nonappealable orders on the mere ground that they may be erroneous.” . Fed.R.Civ.P. 17(b). See Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 • (5th Cir. 1969), cert, denied, 397 U.S. 1007, 90 S.Ct. 1233, 25 L.Ed.2d 419 (1970) ; Brimhall v. Simmons, 338 F.2d 702, 706 (6th Cir. 1964) ; Redditt v. Hale, 184 F.2d 443, 447 (8th Cir. 1950) ; 6 C. Wright & A. Miller, Federal Practice § 1571 (1971). But see Fallat v. Gouran, 220 F.2d 325, 328-329 (3d Cir. 1955). . Seemingly, the point has not been directly litigated in the District Court. . Bengtson v. Travelers Indem. Co., 132 , F.Supp. 512, 517 (W.D.La.1955), aff’d, 231 F.2d 263 (5th Cir. 1956) ; First Nat’l City Bank v. Gonzalez & Co. Sucr. Corp., 308 F.Supp. 596, 600 (D.Puerto Rico 1970) ; 6 C. Wright & A. Miller, Federal Practice § 1571 (1971). See also Hanna v. Plumer, 380 U.S. 460, 469—474, 85 S.Ct. 1136, 14 L. Ed.2d 8 (1965) ; Constantine v. Southwestern Louisiana Institute, 120 F.Supp. 417, 418—419 (W.D.La.1954). . “Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” Fed.R.Civ. P. 17(e). . See authorities cited supra notes 13, 15. . See Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 38-39, 68 A.L.R.2d 747 (5th Cir. 1958) ; United States v. Noble, 269 F.Supp. 814, 815 (E.D.N.Y.1967). . See New Mexico Veterans’ Serv. Comm’n v. United Van Lines, 325 F.2d 548, 550 (10th Cir. 1963). See also Till v. Hartford Accident & Indem. Co., 124 F.2d 405, 408-409 (10th Cir. 1941) ; Rutland v. Sikes, 203 F.Supp. 276, 277 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert, denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963). . As we have said, Fed.R.Civ.P. 17 (c) directs district courts to either appoint guardians ad litem or fashion protective orders for incompetent persons not otherwise represented. See text supra at notes 15-19. Moreover, insanity or other severe mental difficulty of a client may operate to suspend or terminate a preexisting attorney-client relationship. See Sullivan v. Dunne, 198 Cal. 183, 244 P. 343, 346 (1926) ; Evans v. York, 217 S.W.2d 749, 751 (Ct.App.Mo. 1949) ; Merritt v. Merritt, 27 App.Div. 208, 50 N.Y.S. 604, 605-608 (1898). See also Jackson v. Hall, 139 Kan. 832, 836, 32 P.2d 1055, 1057 (1934) ; Lewis v. Commissioner of Banks, 286 Mass. 570, 575, 190 N.E. 790, 791 (1934) ; Restatement (Second) of Agency § 122(1) (1958). Cf. Kimmie v. Terminal R. Ass’n, 344 Mo. 412, 126 S.W.2d 1197, 1200 (1939). . A physically and mentally-able litigant bears obligation to respond to an effort by his adversary to obtain deposition-discovery of unprivileged information relevant to the subject matter in suit. Fed.R.Civ.P. 30(a), 36(b). . See Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir.), cert, denied, 404 U.S. 913, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971). See also Smith v. United States, 174 F.Supp. 828 (S.D.Cal.), appeal dismissed, 272 F.2d 228 (9th Cir. 1959), cert, denied, 362 U.S. 954, 80 S.Ct. 868, 4 L.Ed.2d 871 (1960). . Will v. United States, supra note 7, 389 U.S. at 96, 88 S.Ct. at 274, 19 L.Ed.2d 305. See also 28 U.S.C. §§ 1291, 1292 (1970) ; Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 84 L.Ed. 783 (1940). “This general policy against piecemeal appeals takes on added weight in criminal cases,” Will v. United States, supra note 7, 389 U.S. at 96, 88. S.Ct. at 274, but undeniably the policy retains its potency in civil litigation. . Will v. United States, supra note 7, 389 U.S. at 104, 88 S.Ct. at 278, quoting Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382, 74 S.Ct. 145, 98 L.Ed. 106. . Parr v. United States, 351 U.S. 513, 520 521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956). Accord, Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382-383, 74 S.Ct. 145; Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. 1558, 91 L.Ed. 2041; Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 25, 30, 63 S.Ct. 938, 87 L.Ed. 1185. . Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 385, 74 S.Ct. 145; Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. 1558. . Compare English v. Cunningham, 108 U. S.App.D.C. 356, 357, 282 F.2d 839, 840 (1960) ; Pauls v. Secretary of Air Force, 457 F.2d 294, 298 (1st Cir. 1972) ; American Express Warehousing, Ltd. v. Trans-america Ins. Co., 380 F.2d 277, 281-282 (2d Cir. 1967) ; Borden Co. v. Sylk, 410 F.2d 843, 845, 846 (3d Cir. 1969) ; Gosa v. Securities Investment Co., 449 F.2d 1330, 1332-1333 (5th Cir. 1971) ; Zalatuka v. Metropolitan Life Ins. Co., 108 F.2d 405, 406-407 (7th Cir. 1939). There are exceptions, not applicable here, to the rule of nonappeala-bility, E. g., Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 68-69, 351 F.2d 762, 765-766 (1965) ; Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1122-1123 (5th Cir.), cert, denied, Trefina A. G. v. United States, 400 U.S. 878, 91 S. Ct. 118, 27 L.Ed.2d 115 (1970). . American Express Warehousing, Ltd. v. Transamerica Ins. Co., supra note 27, 380 F.2d at 283-284; Belships Co., Ltd. Skibs A/S v. Republic of France, 184 F.2d 119 (2d Cir. 1950) ; Bank Line, Ltd. v. United States, 163 F.2d 133, 136, 137 (2d Cir. 1947) ; Byram Concretanks, Inc. v. Meaney, 286 F.2d 170, 171 (3rd Cir. 1961) ; National Bondholders Corp. v. McClintic, 99 F.2d 595, 598-599 (4th Cir. 1938) ; In re Illinois Cent. R.R., 192 F.2d 465, 466 (5th Cir. 1951) ; Chemical § Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962) ; Fisher v. Delehant, 250 F.2d 265, 269-270 (8th Cir. 1957) ; Belfer v. Pence, 435 F.2d 121, 122-123 (9th Cir. 1970) ; Paramount Film Distrib. Corp. v. Civic Center Theatre, 333 F.2d 358, 360-361 (10th Cir. 1964)See also C. Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 775-76 (1957) ; P. Carrington, The Power of District Judges and the Responsibility of Courts of Appeal, 3 Ga.L.Rev. 507, 513 (1969). See, however, Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), and Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915), in each of which the Supreme Court ordered a writ of mandamus directed to a district court in the exercise of the power it formerly possessed to issue “writs of mandamus in cases, . . . warranted by the principles and usages of law, to any courts appointed . . . under the authority of the United States.” Judiciary Act of 1789, 1 Stat. 81; Act of March 3, 1911, ch. 231, 36 Stat. 1156. This power continued until passage of the Act of June 25, 1948, ch. 646, 62 Stat. 944, 28 U.S.C. § 1651 (1970), by which the authority of all federal courts is now limited to “writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” (emphasis supplied). See In re Josephson, 218 F.2d 174, 177-179 (1st Cir. 1954). As that case warns, [D]ecisions of the Supreme Court of the United States, at least prior to 1948, supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not safely be relied upon by an intermediate court of appeals as authority for the issuance by the latter court of 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_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. John WHITEHEAD, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Tom GRAY, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Monette LAY, Appellee, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Appellant. Nos. 78-3230, 78-3231 and 78-3329. United States Court of Appeals, Sixth Circuit. Argued Oct. 20, 1978. Decided April 9, 1979. Patrick H. Molloy, U. S. Atty., William M. Brown, Lexington, Ky., for appellant in all cases. William Kanter, Patricia Reeves, Dept, of Justice, App. Section, Civ. Div., Washington, D. C., for appellant in Nos. 78-3230 and 78-3231. Grant P. Knuckles, Pineville, Ky., for ap-pellee in No. 78-3230. Dale B. Mitchell, Mitchell & Gillum, Somerset, Ky., Bruce W. Singleton, for appellee in No. 78-3231. Stephen C. Cawood, Pineville, Ky., for appellee in No. 78-3329. Before EDWARDS, Chief Judge, EN-GEL, Circuit Judge, and CECIL, Senior Circuit Judge. CECIL, Senior Circuit Judge. These appeals are from orders of remand to the Secretary by Magistrate David R. Irvin, to whom the petitions of the plaintiffs were assigned by Judge Moynahan of the United States District Court for the Eastern District of Kentucky. John Whitehead made application for social security disability benefits, Tom Gray applied for black lung benefits and Monette Lay made application for disabled widow’s insurance benefits. In each case the claim was denied by a hearing examiner and the denial was affirmed by the Appeals Council. The claimants then each brought an action in the District Court for the Eastern District of Kentucky to review the decisions of the Secretary of Health, Education and Welfare. Under the general order of the court, the clerk referred these cases to the Magistrate. The court’s order of reference is as follows: “UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY “IN THE MATTER OF: REFERENCE OF SOCIAL SECURITY AND BLACK LUNG BENEFIT CASES ASSIGNED TO JUDGE MOYNAHAN ORDER “In accordance with Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), it is hereby ordered that the Clerk of the Court refer all actions appearing on the Frankfort, Lexington and London dockets of this Court which seek judicial review of a denial of a claim for benefits under the Social Security Act, 42 U.S.C. § 405(g), and under Part B of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, which are assigned to the undersigned Judge to the United States Magistrate at Lexington, Kentucky, for preliminary review. “The United States Magistrate is authorized to enter such orders as are necessary to facilitate his review of said actions, including, but not limited to, orders allowing litigation in forma pauperis; orders placing parties on terms for the filing of pleadings, motions and memoran-da; and orders allowing the filing of tendered pleadings, motions and memoranda. The Magistrate shall enter no order having the effect of a final determination on the merits of any such action. “Upon completion of his review of each action referred to him under this Order, the Magistrate shall prepare and file with the Clerk of the Court a written Report and Recommendation on the issues presented so as to facilitate the decision of the Court. Upon the filing of said Report and Recommendation, the parties shall within ten (10) days thereafter file with the Clerk of the Court their particularized objections to the same and for oral argument, if desired. At the expiration of the ten (10) day period, the Clerk shall forward the entire record in the action, including the Magistrate’s Report and Recommendation and all objections thereto, to the undersigned Judge for final consideration and determination on the merits. “This 2nd day of February, 1977. “ [signature! “Bernard T. Moynahan, Jr., Chief Judge” Whitehead’s complaint in the district court was filed on May 21, 1976, and, in response thereto, the Secretary filed an answer on August 24, 1976, together with a transcript of administrative proceedings before the hearing examiner. Thereafter, Whitehead filed a motion for summary judgment in February, 1977. The Secretary filed a similar motion in March, 1977. Subsequently, Whitehead suffered a myocardial infarction and moved for permission to file a June 6, 1977 report of his treating physician, Dr. Emanuel Rader. In addition, he filed a motion for remand of his case to the Secretary for consideration of new evidence. Magistrate Irvin entered an order allowing the Secretary twenty days in which to respond to Whitehead’s motion for report and remand. Whitehead amended his motion and sought to attach a January 10, 1978 report of Dr. Rader. On January 24, 1978, the Secretary moved for an extension of time until February 23, 1978, within which to respond to Whitehead’s motions. This motion was granted by the Magistrate in an order of February 2, 1978. However, by order of February 7, 1978, the Magistrate remanded the case to the Secretary for further administrative procedure. Thereupon, on March 21, 1978, the Secretary filed his notice of appeal from the order of the Magistrate. In response to Gray’s complaint in the district court filed August 6, 1975, the Secretary filed an answer together with a transcript of administrative proceedings before the hearing examiner. Thereafter, on March 22,1976, the Secretary filed a motion for summary judgment. Gray then filed a motion for summary judgment on April 22, 1976. Before any ruling on these motions Gray died and his attorney filed a motion for remand with suggestion of death. By order of October 12, 1977, the Magistrate allowed the Secretary twenty days in which to respond to the motion for remand. The Secretary filed no such response. On January 24, 1978, the Magistrate entered an order remanding the case to the Secretary for further administrative proceedings. The Secretary filed a notice of appeal from this decision on March 21, 1978. On August 20,1976, Monette Lay filed an action in the District Court for the Eastern District of Kentucky for a review of the decision of the Secretary denying her claim for disabled widow’s insurance benefits under the Social Security Act. The Secretary filed an answer on August 20,1976, together with a transcript of the administrative proceedings before the hearing examiner. Thereafter, the Secretary filed a motion for summary judgment on April 13, 1977. In response, Lay filed a counter-motion for summary judgment and, in addition, she filed a motion for remand to the Secretary for the taking of further testimony. On May 11, 1977, the Magistrate entered an order allowing the Secretary twenty days within which to respond to Lay’s motions. The Secretary filed a response on August 4, 1977, and, on March 22, 1978, the Magistrate issued an order remanding the case to the Secretary. This order is as follows: “The plaintiff has filed a motion to remand this action to the Appeals Council of the Social Security Administration for additional consideration and review and in support thereof has filed the medical report of Dr. Robert B. Matheny which discloses the results of a May 25, 1976, physical examination of the plaintiff. The defendant has filed a response in opposition to the motion to remand. “20 C.F.R. § 404.1506 states that the Listing of Impairments in the Appendix describes impairments which are of a severity level deemed disabling and are expected to result in death or to last for a period of not less than twelve months. Appendix § 3.02 lists specified values for forced expiration volume and maximum breathing capacity which will indicate the existence of chronic obstructive airway disease. For a person of the plaintiff’s height these values are 1.2.L and 39.L/min. respectively. The medical report offered by the plaintiff indicates values of .65 L. and 39 L./min. respectively. “While nothing in this opinion shall be construed as a determination on the merits of the plaintiff’s application, it is the opinion of the Magistrate that the medical report is relevant and new evidence that could influence the Secretary’s determination as to whether the plaintiff is disabled. For the foregoing reasons, it is now therefore ORDERED HEREIN AS FOLLOWS: “(1) That the plaintiff’s motion to remand be, and the same is hereby, sustained; “(2) That this action be, and the same is hereby remanded to the Secretary of Health, Education and Welfare. “This 22nd day of March, 1978. “DAVID R. IRVIN “David R. Irvin, U. S. Magistrate” On May 19, 1978 the Secretary filed a notice of appeal from this order of the Magistrate. The procedural posture of the Secretary’s efforts to object to Judge Moynahan’s order of reference and Magistrate Irvin’s remands may be summarized as follows: The order contemplated that the Magistrate shall prepare and file with the clerk his findings and a written recommendation. The parties would then have ten days in which to file their objections to the report. No reports and no recommendations were filed by the Magistrate and no objections were made by the Secretary. In this status of the cases, the Secretary sought to perfect three direct appeals to this Court, one in each of the three cases in which remand had been ordered by the Magistrate. In addition he commenced a mandamus proceeding to compel the district court to perform what he considered was the mandatory administrative act of passing, one way or the other, upon the issues of remand. This Court ordered that these appeals should be consolidated and briefed together. The decision and opinion on the mandamus proceeding is reported as Califano v. Moynahan, 596 F.2d 1320 (1979). The Secretary asserts he was faced with a dilemma in opposing the Magistrate’s independent order of remand. Since the Magistrate submitted no report and recommendation to the district judge, but instead directly granted the motion for remand, the Secretary asserts that it was not possible for him to file particularized objections with the Clerk of the Court as contemplated by the general order of reference on social security and black lung benefit cases entered by Chief Judge Moynahan on February 2, 1977. Clearly the Magistrate considered the question of remand to be a pretrial matter within the meaning of the Magistrate’s Act, 28 U.S.C. § 636(b)(1)(A): A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. The Secretary, on the other hand, asserts that because remand was dispositive of the case, the language of Section 636(b)(1)(A) does not provide an avenue of relief. We think it does. The cited section obviously con temp ates that there will be matters which the Magistrate may endeavor to undertake which may be “contrary to law.” The Secretary asserts that the Magistrate’s power independently to enter an order of remand is contrary to law. This appears to be precisely the type of conduct for which Section 636(b)(1)(A) provides relief. However, instead of seeking reconsideration by the district court, the Secretary has sought to take a direct appeal from the Magistrate’s order of remand. Orders of remand, when entered by a district judge, have normally been held not to be final and thus not appealable. See Bohms v. Gardner, 381 F.2d 283 (8th Cir. 1967) (Blackmun, J.), cert. denied, 390 U.S. 964, 88 S.Ct. 1069, 19 L.Ed.2d 1164 (1968); Mayersky v. Celebrezze, 353 F.2d 89 (3rd Cir. 1965); Marshall v. Celebrezze, 351 F.2d 467 (3rd Cir. 1965). If a remand order by a district judge is not appealable, how much less is a similar order by a Magistrate where the Secretary has not even availed himself of the statutory provision for obtaining relief from the district court? Accordingly, the court concludes that the issue raised by the Secretary is not ripe for review and that this court is without jurisdiction to reach it in these consolidated appeals. We need not reach the more difficult question of whether a district court order denying relief under Section 636(b)(1)(A) on the basis that the Magistrate had the power independently to order remand, is itself appealable. We do not have such an order before us, and the Secretary has not sought one. Accordingly, the appeals herein are dismissed. . Appellant-petitioner’s position is first set forth in footnote 2 of his reply brief (filed August 30, 1978), and places reliance on Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976), decided before the 1976 amendments: “Respondent correctly points out that § (b)(1) of the Magistrates Act provides a remedy for a clearly erroneous ruling by a magistrate on a pretrial motion which has properly been delegated to him for disposition. However, that provision does not save the procedure used here since Social Security Act cases may only be delegated as provided in § (b)(3) and Weber [423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)]. Only the judge may make a decision disposing of a social security case, even though he may request a proposed decision from the magistrate. Reviewing an order entered by the magistrate to determine whether it is clearly erroneous is simply not the same as making the decision in the first instance. That the distinction is an important one is made clear by the Congressional decision to limit a magistrate to making a recommendation even as to some pretrial matters under § (b)(1).” . See also Fugate v. Morton, 510 F.2d 307 (9th Cir.), cert. denied, 422 U.S. 1045, 95 S.Ct. 2665, 45 L.Ed.2d 697 (1975); Barfield v. Weinberger, 485 F.2d 696 (5th Cir. 1973); Pauls v. Secretary of the Air Force, 457 F.2d 294 (1st Cir. 1972); United Transportation Union v. Illinois Central Railroad Co., 433 F.2d 566 (7th Cir. 1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1374, 28 L.Ed.2d 661 (1971). . Alternatively, we do not have jurisdiction to decide the appeal since the orders appealed here are those of a magistrate. The jurisdiction of the court of appeals is limited to appeals from decisions of the district courts. Sick v. City of Buffalo, 574 F.2d 689 (2d Cir. 1978); Carmena v. International Union of Operating Engineers, 572 F.2d 1031 (5th Cir. 1978); United States v. National Bank of Rush Springs, 576 F.2d 852 (10th Cir. 1978); United States v. Haley, 541 F.2d 678 (8th Cir. 1974). Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_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. John DOE et al., Appellants, v. John L. McMILLAN et al. No. 71-1027. United States Court of Appeals, District of Columbia Circuit. Argued June 7, 1971. Decided Jan. 20, 1972. Certiorari Granted June 26, 1972. See 92 S.Ct. 2505. See also, 143 U.S.App.D.C. 157, 442 F.2d 879. Mr. Dennis Dutterer, Washington, D. C., with whom Mrs. Jean Camper Cahn and Mr. J. Kirkwood White, Washington, D. C., were on the brief, for appellants. Mr. David P. Sutton, Asst. Corporation Counsel for District of Columbia, for District of Columbia appellees. Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, also entered appearances for District of Columbia ap-pellees. Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. Thomas A. Flan-nery, U. S. Atty., at the time the brief was filed, Joseph M. Hannon, Asst. U. S. Atty., Fred M. Vinson, Jr., William C. Cramer, Michael P. Bentzen, Sheldon S. Gilbert, Richard M. Haber, and James S. Rubin, Washington, D. C., were on the brief, for Federal appellees. Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and Mae-KINNON, Circuit Judges. MacKINNON, Circuit Judge: Plaintiff-appellants in this case are a class of persons composed of students at Jefferson Junior High School in the District of Columbia and their parents and guardians. Defendant-appellees are: (1) The Chairman and Members of the House of Representatives Committee on the District of Columbia; (2) the Clerk, Staff Director, Counsel and a consultant to the Committee; (3) the Superintendent of Public Documents and the Public Printer, i. e., the Government Printing Office; (4) the President and Members of the Board of Education of the District of Columbia; (5) the Superintendent of the Public Schools of the District of Columbia; (6) the Principal of Jefferson Junior High School; (7) a teacher at Jefferson Junior High School; (8) a District of Columbia Police Officer acting as an investigator for the Committee; and (9) the United States of America. Appellants, proceeding in forma pauperis and under fictitious names to preserve their anonymity, commenced this action in the District Court for damages, a declaratory judgment and for an injunction against further publication and distribution of a report of the House of Representatives Committee on the District of Columbia on the District of Columbia School System unless 45 pages thereof were altered to delete certain names of students. The pages in question contain copies of: (1) student absentee lists; (2) letters, memoranda, and other papers regarding student disciplinary problems; and (3) student test papers. These documents, which include the true names and addresses of appellants, identify the students in contexts that are, at least partially, derogatory. Appellants contend, inter alia, that the disclosure, dissemination, and publication of the House Committee Report, so long as it contains the names of said students, violate their constitutional and common law right to privacy, constitute an impermissible bill of attainder, deny them due process of law, violate the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1970), are devoid of any valid legislative purpose, and will cause severe damage to their mental and physical health, their reputations, and appellant-students’ future careers. They also make a contention on appeal which was not raised below, namely, that the House Committee Report was published and distributed in violation of House rules. The District Court denied appellants’ motion for temporary relief and dismissed their complaint. It found that the House Committee Report had a “legitimate and proper legislative purpose,” as demonstrated by the underlying enabling resolution, and it held that it was without jurisdiction to grant the requested injunctive relief by reason of the doctrine of separation of powers. It further determined that since the acts of the Legislative Branch employees named as defendants were performed by them in the course of their employment, they were absolutely privileged under the doctrine of official immunity. The District of Columbia defendants were found to be protected by the doctrine that a public officer cannot be liable in money damages, even if he has acted negligently, so long as his act was discretionary. Finally, the District Court concluded that it lacked jurisdiction over any claim against the United States, since appellants had not exhausted their other remedies as required by 28 U.S.C. § 2675(a) (1970). This appeal followed. Appellants moved this court for summary reversal or an injunction pending appeal. On January 14, 1971, >ve issued an injunction to preserve the status quo until responses were filed. Such order did not enjoin the Members of the House District Committee or the United States, but it did prohibit the other defendant-appellees from any further publication and distribution of the House Committee Report, so long as it contained the names and addresses of pupils and parents. On March 11, 1971, this court denied appellants’ motion for summary reversal, and appellees’ motion for summary affirmance, and it modified the injunctive order of January 14, 1971, to permit the publication of names of students absent from school. It otherwise continued the injunction and ordered the case set for argument on an expedited basis. The issues have now been briefed and argued, and we hold that the District Court’s dismissal was proper. For the reasons set out below, we have concluded that the District Court was without jurisdiction with respect to the defendant-appellees. Therefore, we have not found it necessary to consider the merits of the constitutional, statutory, administrative, and common law claims which appellants have asserted. I Under Article I, Section 8 of the Constitution, Congress is provided with exclusive legislative authority over the District of Columbia. This pervasive power is accompanied by inherently broad investigatory authority. Preliminary inquiry has from the earliest times been considered an essential of the legislative process. By it are to be determined both the advisability for and the content of legislation. So that even as to ordinary subjects, the power of inquiry by the legislature is coextensive with the power of legislation and is not limited to the scope or the content of contemplated legislation. Constitutional legislation might ensue from information derived by an inquiry upon the subject described in the [investigating body’s legislative authorization.] That potentiality is the measure of the power of inquiry. Barsky v. United States, 83 U.S.App.D. C. 127, 131, 167 F.2d 241, 245, cert. denied, 334 U.S. 843, 68 S.Ct. 1511, 92 L. Ed. 177 (1948). See Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97 (1947), and authorities cited therein; McGrain v. Daugherty, 273 U.S. 135, 177-179, 47 S.Ct. 319, 71 L.Ed. 580 (1927). “The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Barenblatt v. United States, 360 U.S. 109, 111, 79 S.Ct. 1081, 1085, 3 L.Ed.2d 1115 (1959). See Watkins v. United States, 354 U.S. 178, 187, 198, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957). The instant case concerns an investigation of the District of Columbia Public School System which was conducted on behalf of the Committee on the District of Columbia of the House of Representatives, by a Special Select Subcommittee of that House District Committee, under the authority of H.R.Res. 76, 91st Congress, 1st Session. The study probed deeply into a great many problems of the District of Columbia School System. Included were: Administrative Problems, Board of Education of the District of Columbia, Crime in the Schools, D.C. School’s Answer to Special Select Subcommittee Questions, Pornography, Revolutionary and other Inflammatory Materials, Damage to Property, Drug Abuse in the Schools, School Budget, Washington Teachers Union, Student Bussing, Student Suspension Policy, Schools without Walls, Open Class Rooms, Open Class Room Concept, Freedom School, Vocational Schools, Student Bill of Rights and Responsibilities and Teacher Comments. A portion of the study related to absenteeism, student discipline, and educational quality. On these matters, the 45 pages from 213-258 set forth for Jefferson Junior High School various absence sheets, lists of class cutters and certain reports and information concerning breaches of discipline and suspension problems. Also included were 19 pages of student test papers for a history examination taken from a fifth grade textbook but given to seventh graders. The average score was “F” and the report was submitted by the teacher to show the poor reading ability of most of her students. At the conclusion of the investigation, the House Committee issued a 450-page Report, both for the benefit and use of Congress and for the information of the public. The material to which appellants object is only a small part of the entire Report. The Report in its entirety discloses a truly deplorable state of affairs in the public schools of the District of Columbia and obviously one of tremendous congressional concern. Appellants do not challenge the propriety of the investigation or the issuance of the Report generally — i. e., absent the use of their names — nor could they. They only assert a statutory, common law, and constitutional right to anonymity. We need not discuss the merits of appellants’ innovative claims, however, since we conclude that all of the defendant-appellees named in the complaint are immune from the suit brought against them. II Article I, Section 6 of the Constitution provides that “for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other place.” This provision, which was adopted by the Constitutional Convention without debate or opposition, found its roots in the conflict between Parliament and the Crown culminating in the Glorious Revolution of 1688 and the English Bill of Rights of 1689. In light of this history, the Supreme Court concluded in United States v. Johnson, 383 U.S. 169, 181, 86 S.Ct. 749, 755, 15 L.Ed.2d 681, (1966), that the purpose of the Speech or Debate Clause was “to prevent intimidation [of legislators] by the executive and accountability before a possibly hostile judiciary.” “In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.” To accomplish this important objective, the Supreme Court has recognized the necessity for construing the Speech or Debate Clause protection in a broad fashion. Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881); United States v. Johnson, 383 U.S. 169, 179-180, 86 S. Ct. 749, 15 L.Ed.2d 681 (1966). “[I]t would be a ‘narrow view’ to confine [its] protection ... to words spoken in debate. Committee reports, resolutions, and the act of voting are equally covered, as are ‘things generally done in a session of the House by one of its members in relation to the business before it.’ Kilbourn v. Thompson, supra, at 204.” Powell v. McCormack, 395 U.S. 486, 502, 89 S.Ct. 1944, 1954, 23 L.Ed.2d 491 (1969) (emphasis supplied) The Speech or Debate Clause not only provides a defense on the merits, but it generally protects a legislator from the annoyance of having to devote his time and efforts to defending himself in court. Powell v. McCormack, supra, 395 U.S. at 502-503, 89 S.Ct. 1944. See Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). The only question which a trial court should consider is “whether from the pleadings it appears that the [legislators] were acting in the sphere of legitimate legislative activity.” Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). Since we believe that the activities of the defendant-members of the Committee on the District of Columbia of the House of Representatives “may fairly be deemed within [the Committee’s] province,” it is clear that the District Court properly dismissed the suit as to them. Id., at 378, 71 S.Ct. at 789. See United States v. Doe, 455 F.2d 753, 757 (1st Cir. 1972). As has been noted, appellants concede the authority of the House District Committee to investigate and report to Congress on the District of Columbia Public School System. They have only questioned the propriety of that small portion of the Committee Report which uses their names in Somewhat derogatory contexts. “That the protection of private rights upon occasion involves an invasion of those rights is inxtheory a paradox but, in the world as it hapjieps to be, is a realistic problem requiring a practical answer.” Barsky v. United States, supra, 83 U.S.App.D.C. at 135, 167 F.2d at 249. It is apparent that the House District Committee was faced with a great dilemma. In its effort to expose the vexing problems which adversely affect the District of Columbia School System, with a view toward the alleviation of such problems to the benefit of all school children, the Committee obviously believed that some disclosure which might possibly injure a few pupils was necessary. While there may or may not be any substantial public interest in the test papers, discipline memoranda, or absentee lists themselves, the inclusion of such material in the Committee Report clearly increased its credibility. While some might consider that it was unnecessary to include the names, at a time such as this when “credibility gaps” are frequently mentioned, it was entirely reasonable for the House District Committee to include what it considered to be sufficient factual data to support its findings concerning a controversial and complex area. Delinquency in the District of Columbia Schools is such a problem and in connection with its investigation of the Student Suspension Policy, which it was investigating, Congress had a right to know the precise details of a few particular disciplinary problems involving the discipline of particular students for particular acts committed in the class rooms of the public schools of the District. All the details of such circumstances, including the names of the students involved and their acts were relevant and necessary for a full and proper consideration of the matter. Many of the instances of student delinquency which one hears daily are considered by many to be unbelievable. Others assert they are untrue. Under such circumstances the desire of the Committee to present specific evidence to support its findings is understandable. And the discretion is vested in Congress, not the courts. We must be careful to remember that under such circumstances, “every reasonable indulgence of legality must be accorded to the actions of [the] coordinate branch of our Government” by the judiciary. Watkins v. United States, supra, 354 U. S. at 204, 77 S.Ct. at 1188. What is really involved here is Congress functioning as it must with respect to the District of Columbia, as a combination state legislature and education committee that is concerned with a grass roots problem. As with any local school board problem, this involves individuals, administrators, teachers, employees, parents, students and taxpayers. The Report recognizes this and to make its study complete and to give it the maximum credibility, the Report throughout, in hundreds of situations in addition to the students involved in disciplinary problems, has named the persons involved. The Report is replete with names of individuals, groups and organizations, many of which are discussed in connection with highly derogatory conduct. For instance, in reporting on the narcotics situation, names and incidents are recited of employees who were furnishing narcotics to drivers employed by the schools. H.R.Rep. No. 91-1681, 91st Cong., 2d Sess. 109-110 (1970). Appellants are not singled out. They are a minor part of the Report. However, it must be noted that the use of specific names throughout the Report does add considerably to its credibility in an area where reliability is necessary. “Our function, at this point, is . . not to pass judgment upon the general wisdom or efficacy of the activities of this Committee in a vexing and complicated field.” Barenblatt v. United States, supra, 360 U.S. at 125, 79 S.Ct. at 1092. It is merely to determine whether the defendant-legislators were acting within the sphere of their legitimate activity when they collected the information in question and issued the House Committee Report in its present form. Since it is readily apparent that their actions were within the discretionary area of their constitutional authority, the defendant-Representatives are absolutely protected by the Speech or Debate Clause. Ill The legislative immunity provided by the Speech or Debate Clause is not limited to Congressmen, although the doctrine’s protection “is less absolute when applied to officers or employees of a legislative body, rather than to legislators themselves.” Dombrowski v. Eastland, supra, 387 U.S. at 85, 87 S.Ct. at 1427. See Tenney v. Brandhove, supra, 341 U.S. at 378, 71 S.Ct. 783. Therefore, when congressional employees or officers are acting pursuant to valid legislative authorization, in furtherance of a proper legislative purpose, they also come within the scope of the Speech or Debate Clause protection. See United States v. Doe, 455 F.2d 753, 761 (1st Cir. 1972). There is no contention by appellants that any of the Federal legislative employees named as defendants were acting outside the sphere of their official duties. They merely performed the incidental functions which were necessary to insure the full accomplishment of the House District Committee’s appropriate legislative objective. In this day of complex public problems, where assignment of authority by legislators to legislative assistants is an absolute necessity if Congress is to be able to perform its constitutional functions, it would indeed be hollow to afford immunity to the Congressmen, but not to their assistants, for these aides might be hesitant to undertake the full performance of their lawful duties if they had to face the threat of possible lawsuits. Such an inconsistent result would impossibly hinder congressional activities, and effectively prevent the attainment of the objectives underlying the Speech or Debate Clause. We therefore must conclude that the suit against the Federal legislative employees was properly dismissed due to their legislative immunity. Although we could base our decision regarding the Federal legislative employees wholly on the protection afforded them by the Speech or Debate Clause, an additional consideration further demonstrates why the District Court properly refused to enjoin the publication and distribution of the House Committee Report by them. “If a court could say to the Congress [, and we might add to its authorized agents,] that it could use or could not use information in its possession, the independence of the Legislature would be destroyed and the constitutional separation of the powers of government invaded. Nothing is better settled than that each of the three great departments of government shall be independent and not subject to be controlled directly or indirectly by either of the others.” Hearst v. Black, 66 App.D.C. 313, 316-317, 87 F.2d 68, 71-72 (1936). In Methodist Federation for Social Action v. Eastland, 141 F.Supp. 729 (D.D.C. 1956), a decision of a three-judge court, Judge Edgerton speaking for himself and Judge Prettyman said: Nothing in the Constitution authorizes anyone to prevent the President of the United States from publishing any statement. This is equally true whether the statement is correct or not, whether it is defamatory or not, and whether it is or is not made after a fair hearing. Similarly, nothing in the Constitution authorizes anyone to prevent the Supreme Court from publishing any statement. We think it equally clear that nothing authorizes anyone to prevent Congress from publishing any statement. * * ' * * [Courts] have no more authority to prevent Congress, or a committee or public officer acting at the express' direction of Congress,.from publishing a document than to prevent them from publishing the Congressional Record. If it unfortunately happens that a document which Congress has ordered published contains statements that are erroneous and defamatory, and are made without allowing the persons affected an opportunity to be heard, this adds nothing to our authority. Only Congress can deal with such a problem. 141 F.Supp. at 731-732. See Hobson v. Tobriner, 255 F.Supp. 295 (D.D.C.1966). In light of the assurance provided this court by the Federal appellees that the Chairman and Members of the House District Committee, as presently constituted in the 92d Congress, have no intention of seeking republication or further distribution of the House Committee Report, we believe that the admonition provided by this court in Cole v. McClellan, 142 U.S.App.D.C. 24, 26, 439 F.2d 534, 536 (1970), is highly relevant: Judicial restraint is certainly proper in a case like the one before us, where the salient factors, taken in conjunction with each other, reveal (a) information delivered to the committee without objection or protest, (b) only the vaguest allegations of anticipated harm — a hypothetical speculation that at some indeterminate future occasion [appellants might suffer some injury] . ; and (c) a lack of any showing of current activity by the committee staffs which constitute, as to the class of plaintiffs, an actual threat along such lines, or which otherwise give immediacy to the claim that constitutional freedoms are being infringed or jeopardized. It is clear that the information in question was provided the legislative investigators by the District of Columbia school officials without objection or protest. In view of the fact that the Report had already been published and distributed before this action was instituted and that appellants have only asserted vague allegations of anticipated harm at some indefinable future time, we believe that the court below exercised appropriate judicial restraint in dismissing that part of appellants’ complaint which sought the enjoining of the publication and dissemination of the House Committee Report. Any other determination would have caused needless friction between separate and independent departments of the Federal Government. IV We also decide that all of the District of Columbia defendant-appellees, as well as the Federal legislative employees named in the complaint, are protected from liability in the instant case by the doctrine of official immunity. Unlike the constitutionally based Speech or Debate Clause protection, the law of privilege as a defense by governmental officials to civil suits has in large part been of judicial making. Barr v. Matteo, 360 U.S. 564, 569, 79 S. Ct. 1335, 3 L.Ed.2d 1434 (1959). The courts have recognized that “officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” Id,., at 571, 79 S.Ct. at 1339. The basic rationale for this doctrinal approach was excellently expressed by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949): It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave un-redressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . See Barsky v. United States, supra, 83 U.S.App.D.C. at 136, 167 F.2d at 250; Spalding v. Vilas, 161 U.S. 483, 498-499, 16 S.Ct. 631, 40 L.Ed. 780 (1896); David v. Cohen, 132 U.S.App.D.C. 333, 336, 407 F.2d 1268, 1271 (1969). Official immunity has not been restricted to those in high government positions. “The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.” Barr v. Matteo, supra, 360 U.S. at 572, 79 S.Ct. at 1340. See Cooper v. O’Connor, 66 App.D.C. 100, 107, 99 F.2d 135, 142 (1938); Farr v. Valentine, 38 App.D.C. 413, 420 (1912). Therefore, it is clear that this immunity doctrine is applicable with respect to both the District of Columbia and the Federal officials and employees with whom we are herein concerned. It has been recognized that, to achieve the desired result, official immunity need not be applied to all actions engaged in by any governmental official. Immunity is only afforded in those instances where the official in question has performed a discretionary — as opposed to a ministerial — act, within the scope of his official duties. Kendall v. Stokes, 44 U.S. (3 How.) 87, 98, 11 L. Ed. 506 (1845); Cooper v. O'Connor, supra, 66 App.D.C. at 103, 99 F.2d at 138; Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 164 (1959). Cf. Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S. Ct. 1441, 10 L.Ed.2d 605 (1963). Thus a two-part analysis is required: (1) was the individual performing acts within the scope of his official duties, and (2) did the action undertaken require the exercise of discretion. It is not necessary — in order that acts may be done within the scope of official authority — that they should be prescribed by statute (United States v. Birdsall, 233 U.S. 223, 230-231, 34 S.Ct. 512, 58 L.Ed. 930, . . .); or even that they should be specifically directed or requested by a superior officer. Mellon v. Brewer, 57 App.D. C. 126, 129, 18 F.2d 168, 171, ., certiorari denied, 275 U.S. 530, 48 S.Ct. 28, 72 L.Ed. 409, It is sufficient if they are done by an officer “in relation to matters committed by law to his control or supervision.” [Italics supplied] (Standard Nut Margarine Co. v. Mellon, 63 App.D.C. 339, 341, 72 F.2d 557, 559, certiorari denied, 293 U.S. 605, 55 S.Ct. 124, 79 L.Ed. 696, . . .); ór that they have “more or less connection with the general matters committed by law to his control or supervision.” [Italics supplied] (Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780, . ; and see Lang v. Wood, 67 App.D.C. 287, 288, 92 F.2d 211, 212); or that they are governed by a lawful requirement of the department under whose authority the officer is acting. Cooper v. O’Connor, supra, 66 App.D.C. at 104, 99 F.2d at 139. See Barr v. Matteo, supra, 360 U.S. at 575, 79 S.Ct. 1335; Gregoire v. Biddle, supra, 177 F. 2d at 581. All of the District of Columbia and Federal officials named as defendants have only engaged in official conduct in furtherance of a duly authorized congressional investigation. “It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action.” Watkins v. United States, supra, 354 U.S. at 187, 77 S.Ct. at 1179. This obligation is even more compelling where the citizen involved is a governmental official. Pearson v. Wright, 156 F.Supp. 136, 137 (D. D.C.1957). See Farr v. Valentine, 38 App.D.C. 413, 419 (1912). Clearly the failure of an official to cooperate when matters under his control are being examined by a congressional committee would amount to malfeasance in office. See Cooper v. O’Connor, supra, 66 App. D.C. at 105, 99 F.2d at 140. We must therefore conclude that all the complained of actions were undertaken by the defendant-officials within the scope of their official authority. “The test of whether a challenged action is ministerial or non-ministerial is not the office per se or its height, but whether the function itself was of such discretionary nature that the threat of litigation would impede the official to whom it was assigned.” David v. Cohen, supra, 132 U.S.App.D.C. at 337, 407 F.2d at 1272. All of the pertinent actions undertaken by the officials in question here were non-ministerial. The District of Columbia school officials were required to exercise judgment in deciding what information they should provide the House District Committee investigators, who in turn, had to exercise clear discretion in determining what data to seek. For these reasons, we are forced to conclude that the District Court properly dismissed the suit against the District of Columbia school officials, as well as against the Federal officials. For the foregoing reasons, the decision of the District Court must be Affirmed. APPENDIX POLICY STATEMENT REGARDING CONFIDENTIAL INQUIRIES The Board of Education has determined the need to establish certain policies in order to prevent the disclosure of confidential information and reports regarding .students and school personnel. It is the view of the Board that there are aspects of the professional relationships of school personnel with students, parents, and community which must be considered privileged and remain confidential. The Board of Education in an effort to provide for the protection of the confidentiality of certain information related to school affairs and to respond appropriately to inquiries into the conduct of school affairs in the Public Schools of the District of Columbia establishes the following policies with regard to the release of such information: 1. Formal requests for confidential information regarding students and school personnel, shall be addressed to the Board of Education or its designee and the Superintendent or his designee for appropriate action. 2. The names, addresses and other identifying information related to students are not to be released under any circumstances by school personnel without prior written approval by the Superintendent and President of the Board of Education. The Superintendent and the Board of Education shall ensure that the confidentiality of privileged information is protected. 3. The names, addresses and other identifying information related to teachers or any other school personnel are not to be released under any circumstances by school personnel without prior written approval by the Superintendent and President of the Board of Education. The Superintendent and the Board of Education shall ensure that the confidentiality of privileged information is protected. 4. The Superintendent shall' define with reasonable precision what is privileged information. The Board of Education may review and amend the Superintendent’s definitions. 5. Privileged information can only be released as provided for by Chapter XVI, Section 6, Paragraph 1 of the Rules of the Board. The foregoing shall not be applicable to legislative or judicial subpoenas issued to school personnel. However, upon receipt of such subpoena the employee, through his supervisor, shall as soon as possible contact either the Superintendent or his designee, who, in turn 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_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. CENTURY MOTOR TRUCK CO. v. NOYES. In re NORTHWAY MOTOR CO. (Circuit Court of Appeals. First Circuit. April 7, 1927.) No. 2099. 1. Bankruptcy <@=j227 — Inclusion of summary of evidence in referee’s certificate held substantial compliance with General Order No. 27 In Bankruptcy. Under General Order No. 27 in Bankruptcy, providing that, when petition is filed for review of order of referee, he shall certify to the judge the questions presented, a summary of the evidence, etc., the evidence need not be attached to the certificate, but it is enough that the certificate contains a summary thereof. 2. Bankruptcy <§=>467(3)— Court’s order refusing confirmation of sale of bankrupt’s property for less than 75 per cent, of appraised value Is reviewable only for abuse of discretion (Bankruptcy Act, § 70b [Comp. St. § 9654]). Under Bankruptcy Act, § 70b (Comp. St. § 9654), providing that bankrupt’s property shall not be sold otherwise than subject to approval of the court for less than 75 per cent, of its appraised value, confirmation of sale for less is in court’s discretion, and, in absence of abuse thereof its confirmation of referee’s refusal to confirm a sale for much less than such per cent, is not reviewable, though the referee had authorized sale on condition that it should not be made for less than a certain amount, and the bid was more than that amount. Appeal from the District .Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge. In the matter of the Northway Motor Company, bankrupt. From an order of the court confirming an order of the referee refusing to confirm a sale by Frank Y. Noyes, trustee, to the Century Motor Truck Company, and confirming a later sale to another, the Century Motor Truck Company appeals. Affirmed. Robert A. B. Cook, James H. Duffin, and Phipps, Durgin & Cook, all of Boston, Mass. (Max H. Finkelston, of Detroit, Mich., of counsel), for appellant. Mason H. Stone, of Boston, Mass., for appellee. Frank O. White and Curtis G. Metzler, both of Boston, Mass., for amici curiee. Before JOHNSON and ANDERSON,Circuit Judges, and LOWELL, District Judge. JOHNSON, Circuit Judge. This is an appeal from an order of the District Court of the United States for the District of Massachusetts dismissing a petition by a trustee in bankruptcy for confirmation of a sale of, property of the bankrupt and confirming a subsequent sale. The facts, so far as material, are as follows: • On July 23, 1926, the trustee of the Northway Motor Corporation, the bankrupt, sold at public auction certain real estate and personal property of the bankrupt estate at Marion, Ind. The price bid for the real estate was $10,200 and for the personal property $32,026.02, a total of $42,226.02. On July 30, 1926, the trustee filed a petition before the referee in bankruptcy of the District Court of Massachusetts, which had jurisdiction of the bankrupt estate, asking that the sale be confirmed. At the hearing upon confirmation an offer of $50,000 was made in open court, before the referee, for the same property, and the referee dismissed the petition on the ground of inadequacy of price. On August 5, 1926, the trustee filed a petition for leave to sell the property at private sale, which, upon notice and hearing, was granted by the referee upon the condition that not less than $50,000 should be received for said property. On September 15, 1926, the trustee, after notice by letter to such persons as he believed would attend and bid, held a sale of said property at the Office of Frank Owen White, Esq., in Boston, and agreed, subject to confirmation by the eourt, to sell the real estate to one Albert C. Barley for $19,000, and all the personal property, except cash and acceounts receivable, to the Century Motor Truck Company for the sum of $47,100; said sales being made subject to confirmation by the court. On September 21, 1926, the trustee filed a petition for confirmation of the last-named sales, and a hearing was had thereon before the referee. At the hearing, Albert C. Barley offered $75,000 for both the real and personal property in its entirety, being $8,900 in excess of the total of the two offers which the trustee had last received, and for the confirmation of which he had filed a petition. At the same time a deposit of $7,500 was made by the said Barley in connection with his offer. The Century Motor Truck Company was represented by counsel at this hearing. The said Albert C. Barley appeared in person and with counsel, and the Rutember Motor Company, which had made an offer of $50,000 for the property at a previous hearing, was also represented by counsel. Barley and the trus-: tee were sworn and examined and cross-examined, as appears by the certificate of the referee; and, after hearing evidence and arguments, the referee, September 24, 1926, ordered the petition for confirmation of the sales for $66,100, which had been made at the office of Mr. White, dismissed. September 25, 1926, the trustee presented to the referee a petition for confirmation of the sale of both real and personal property, free and clear of all liens, to Albert G. Barley for $75,000, which said petition was allowed and the sale confirmed by the referee. On October 4, 1926, the Century Motor Truck Company filed a petition for review of the orders of the referee, and requested the referee to annex to his certificate a transcript of the testimony, comprising 60 pages of typewritten matter taken before the referee at the hearing held September 24, 1926. This the referee declined to do, on the ground that all of the testimony material was presented by his certificate and comprised a summary required by General Order No. 27 in Bankruptey, which is as follows: “When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon.” As upon a petition later filed with the judge of the District Court to recommit the referee’s certificate because of this refusal— this is assigned as error — we dispose of it here by saying that the certificate contained a sufficient summary of the evidence, which was a substantial compliance with this order. On November 1, 1926, the District Court ordered, adjudged, and decreed that the order of the referee: “(a) Dismissing the petition for confirmation of sales of real estate and personal property situated at Marion, 3hd.,” and “(b) The order of the referee of September 25,1926, confirming sale of said property to Albert C. Barley, be and they hereby are confirmed.” „ A petition for rehearing was filed, which was denied by the District Court on November 19, 1926. Section 70b of the Bankruptcy Act is as follows: “All real and personal property belonging to bankrupt estates shall be appraised by three disinterested appraisers; they shall be appointed by, and report to, the court. Beal and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value.” Comp. St. § 9654. The real estate in question was appraised ' for $47,250, and the personal property for $116,783, an aggregate of $164,033. The question presented is within a small compass. There is no serious contention that the referee erred in refusing to confirm1' the sales at public auction, but it is contended that the sales made by the trustee at the office of Mr. White in Boston, and authorized by the referee in bankruptcy on condition that the sale should not be made for less than $50,000, should have been confirmed by the District Court. While the highest bidder for property offered for sale by a trustee in bankruptcy is entitled to have his bid accepted by the trustee and reported for confirmation, he is not a purchaser, and is not vested thereby with even an equitable title in the property until the sale is confirmed. See In re Wolke Lead Batteries Co. (C. C. A.) 294 F. 509. The sale which the referee refused to confirm, and which refusal, upon review, was confirmed by the court, was for much less than 75 per centum of the appraised value in the ease of both the real estate and the personal property. In such case the Bankruptcy Act has lodged the confirmation of such a sale within the discretion of the District Court, and, unless there is an abuse of this discretion, the order of the District Court is not subject to review. See, in this circuit, In re Shea, 126 F. 153; Jacobsohn v. Larkey (C. C. A. 3) 245 E. 538, L. R. A. 1918C, 176; In re Wolke Lead Batteries Co. (C. C. A. 6) supra. Our decision in this case should not be taken as an approval of a general practice of upsetting sales which have taken place in the regular course of winding up a bankruptcy estate. Jacobsohn v. Larkey (C. C. A.) 245 E. 538, 541, L. R. A. 1918C, 176. This practice was long ago found in England to be an improvident one, as it discouraged bidding at sales. Graffam v. Burgess, 117 U. S. 180, 191, 6 S. Ct. 686, 29 L. Ed. 839; White v. Wilson, 14 Ves. 151. The decree of the District Court is affirmed, with costs to the appellee. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_usc1sect	2254	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Arthur J. WATSON, Appellant, v. Wayne K. PATTERSON, Warden, Colorado State Penitentiary, Appellee. No. 8398. United States Court of Appeals Tenth Circuit. March 25, 1966. Albert B. Wolf, Denver, Colo., for appellant. John P. Moore, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Deputy Atty. Gen., on the brief), for appellee. Before LEWIS, BREITENSTEIN and HILL, Circuit Judges. HILL, Circuit Judge. Appellant, an inmate of the Colorado State Penitentiary serving a life sentence for the crime of murder, appeals from an adverse decision of the court below which denied his petition for a writ of habeas corpus. In his original pro se petition, Watson asserted three grounds of error committed by the state trial court. First, he contended that he. was denied due process when the court failed to appoint sufficient expert witnesses to aid in his defense, second, that he was denied access to statements made by eye witnesses to the crime which he desired for impeachment purposes, and third, that the trial court erroneously admitted evidence relating to a separate and distinct crime of auto theft which prejudiced the jury. All of these contentions have previously been presented to the Colorado Supreme Court in Watson’s direct appeal. Hence, no question of exhaustion of state remedies is involved. Of the three issues raised by Watson in his petition and decided adversely to appellant where state remedies had been exhausted, only one is urged here on appeal for reversal. It relates to the state trial court’s refusal to appoint sufficient experts to aid Watson in his trial. In this regard, appellant’s petition discloses that he requested the trial court to appoint the following to aid in his defense: A psychiatrist, a private investigator and ballistic experts equal to those used by the state. The court did appoint one qualified ballistic expert to assist the appointed defense counsel but refused to appoint any others. It appears that the state used three ballistic experts at the trial. Appellant concedes that he has found no cases directly holding that the appointment of experts is a constitutional requisite ; nor has our search revealed any such cases. We agree with the court below on this matter. “Fundamental fairness” is the test of due process, Silva v. Cox, 10th Cir., 351 F.2d 61, and we see nothing so unfair here as to raise a federal constitutional issue. After the pro se petition was filed, the court below appointed counsel for Watson and in a traverse to the respondent’s show cause answer, four additional grounds of error were alleged. These four latter errors asserted appellant was deprived of counsel in his state court appeal, that he was denied the right to represent himself in his state court trial, that the state trial judge was biased, and finally that the trial court erroneously admitted into evidence an incriminating admission concerning the theft of two automobiles which occurred on the night of the murder and that the admission was made by appellant to police officers without having been advised of his right to counsel. Of these four new allegations, only the issue of the trial judge’s bias had been presented to the Colorado courts, supra, note 1. The issue of the admissibility of appellant’s admission of auto theft during the murder trial has been presented to the Colorado Supreme Court but only upon a strict evidentiary question. It was not until the traverse that the contention was made that the admission of auto theft should not have been received in evidence because elicited from appellant before he was advised of his right to counsel. The trial court recognized that three of the errors asserted in the traverse had not been previously presented to the state courts, but chose to consider all the issues raised rather than consider the contentions in a piece meal basis. We recognize the dilemma presented to a federal court in a habeas corpus proceeding where a state prisoner asserts a multitude of errors only some of which have been previously presented to the state courts. Yet, we are bound to the rule which requires a state prisoner to exhaust his state remedies where adequate, effective and available before seeking relief from the federal courts. Rule 35(b) of the Colorado Rules of Criminal Procedure is available to the appellant in Colorado to test the issues not previously presented to the state courts. That remedy has not been exhausted and there is no showing that it is inadequate. Therefore, we must conclude that the trial court improperly proceeded to hear and determine the three new issues raised by appellant in his traverse. The trial court’s order denying the writ will not be disturbed but appellant is not precluded from pursuing his presently available Colorado state court remedies for a determination of these new issues. Affirmed. . Watson v. People, Colo., 394 P.2d 737 (1964). . 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Patterson v. Hampton, 10 Cir., 355 F.2d 470; Barber v. Page, 10 Cir., 355 F.2d 171; Burns v. Crouse, 10 Cir., 353 F.2d 489. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_respond2_3_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 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. GOLD KIST, INC., Plaintiff-Appellant, v. U.S. DEPARTMENT OF AGRICULTURE, John R. Block, Secretary, Agricultural Stabilization & Conservation Service, Merrill D. Marxman and Commodity Credit Corporation, Defendants-Appel-lees. No. 83-8386. United States Court of Appeals, Eleventh Circuit. Jan. 28, 1985. Franklin R. Nix, Atlanta, Ga., for plaintiff-appellant. Myles Eastwood, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellees. ON PETITION FOR REHEARING (Opinion Sept. 6, 1984, 11 Cir., 1984, 741 F.2d 344). Before GODBOLD, Chief Judge, HILL and THORNBERRY, Circuit Judges. The portions of this opinion which amend the original opinion, found at 741 F.2d 344, were incorporated therein for bound volume. Honorable Homer Thornberry, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. GODBOLD, Chief Judge: On petition for rehearing the government contends that the following paragraph of the court’s opinion, Gold Kist, Inc. v. U.S. Department of Agriculture, 741 F.2d 344, 348-49 (11th Cir.1984), is incorrect: Besides relying on the Secretary’s inherent authority to impose administrative sanctions, the Secretary also asserts that Gold Kist’s introduction into the domestic market of additional peanuts without first obtaining substitution credits is a violation of section 1359(g), which specifically authorizes imposition of marketing penalties. However, Gold Kist was never charged with having violated section 1359(g) or its companion regulations, 7 C.F.R. §§ 1446.8(a), 1446.9(d), both of which involve the handling and disposition of additional peanuts. Gold Kist doggedly insists that it was not “charged” with violating § 1359(g) because, although there may have been references to this subsection, it was not charged with engaging in conduct that would constitute a violation. Assuming that Gold Kist was sufficiently “charged,” we find that it did not violate § 1359(g). Former section 1359(g) provided as follows: Upon a finding by the Secretary that the peanuts marketed from any crop for domestic edible use by a handler are larger in quantity or higher in grade or quality than the peanuts that could reasonably be produced from the quantity of peanuts having the grade, kernel content, and quality of the quota peanuts acquired by such handler from such crop for such marketing, such handler shall be subject to a penalty equal to 120 per centum of the loan level for quota peanuts on the quantity of peanuts that the Secretary determines are in excess of the quantity, grade, or quality of the peanuts that could reasonably have been produced from the peanuts so acquired. Gold Kist contends that it did not violate this provision because, even though it mistakenly sold additional peanuts into the domestic market, it “had previously exported quota peanuts identical in type, grade, and screen size to those additional peanuts substituted into the domestic market.” Therefore it had “ample ‘substitution credits’ to cover all of the sales of inadvertently miscoded, additional peanuts into the domestic market.” Response to Petition for Rehearing at 5. The government contends that the U.S. Department of Agriculture interprets § 1359(a) to mean that “quota peanuts exported simply reduce the total number of quota peanuts that can be sold in the domestic edible market until such time as the handler actually receives an approval, and at that time they become substitution peanuts____” Reply Brief on Petition for Rehearing at 7. We cannot accept the government’s interpretation. U.S. v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977). Assuming, as the government implicitly does, that the grade and quality requirements of § 1359(g) have not been violated, the question is whether Gold Kist marketed peanuts “larger in quantity ... than the peanuts that could reasonably be produced from the quantity of ... quota peanuts acquired by [the] handler from [the] crop for such marketing____” 7 U.S.C. § 1359(g). Thus the quantity that cannot be exceeded is calculated with reference to the quantity of quota peanuts “acquired ... for such marketing.” The statute cannot be construed to reduce this quantity because some portion of the quota peanuts so acquired are thereafter exported. We delete from our opinion the sentence: However, Gold Kist was never charged with having violated section 1359(g) or its companion regulations, 7 C.F.R. §§ 1446.8(a), 1446.9(d), both of which involve the handling and disposition of additional peanuts. and in lieu thereof substitute the following: Assuming that Gold Kist was charged with having violated § 1359(g) or its companion regulations, 7 C.F.R. §§ 1446.8(a), 1446.9(d), both of which involve the handling and disposition of additional peanuts, it did not commit a violation thereof. In all other respects the Petition for Rehearing is DENIED. 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:
songer_district	C	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". Denis P. KELLY, Petitioner, v. BUTLER COUNTY BOARD OF COMMISSIONERS, Board of Prison Managers, Butler County Correctional Institution, Thomas Hutchinson, Warden, Butler County Correctional Institution and their Agents. Misc. No. 718. United States Court of Appeals ' Third Circuit. Submitted on Briefs July 17, 1967. Decided Sept. 20, 1967. See also, 3 Cir., 399 F.2d 133. Denis P. Kelly, pro se. Charles T. Chew, County Sol., County of Butler, Butler, Pa., for appellee. Before BIGGS, MeLAUGHLIN and VAN DUSEN, Circuit Judges. OPINION OF THE COURT PER CURIAM. This suit seeking money damages only and filed under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1981 and 1983 is before this court on plaintiff’s application, supported by affidavit of poverty, to prosecute an appeal in this court in forma pauperis from an order of the District Court denying his application to proceed in forma pauperis in that court under 28 U.S.C. § 1915. The District Court opinion stated: “a more detailed pleading is necessary * * * for the purpose of informing any judge to whom resort is had that the claim is not frivolous.” In view of these allegations, as summarized at pages 1-2 of the District Court opinion, and the terms of the Complaint, the request for permission to proceed in forma pauperis in this court will be granted: “The plaintiff-petitioner alleges that his federal civil rights were violated by the named defendants in the following particulars: (1) the defendants interfered with and obstructed the plaintiff’s right to access to the Federal courts in that they did not permit him to file legal documents with the United States District Court at Pittsburgh in November 1965 and in February 1966, * * ; and (2) in June 1966, ‘after having been extradicted from the State of New York and returned to the Butler County Correctional Institution’, the plaintiff-petitioner was placed in solitary confinement and subjected to cruel and unusual conditions in order to coerce a guilty plea to the charges lodged against him. The allegedly cruel and unusual conditions which endangered the health and emotional well-being of the plaintiff-petitioner were a steel bunk without a mattress, lack of clothing, no facilities to wash himself, bad food, and foul air. The plaintiff-petitioner was also denied medical care.” Our recent decision of June 16,1967, in Negrich v. Hohn et al., 379 F.2d 213 (3rd Cir.) is inapplicable to the issue now before this court, since that case involved an appeal from a dismissal of a complaint under the Civil Rights Act on the merits whereas the application now before the court is to proceed in forma pauperis so that the appeal may be considered by this court. . Paragraphs 8 and 9 of the Complaint allege that attempts to send legal documents to the courts in November 1965 and February 1966 were denied. Paragraph 11 alleges that in June 1966, when in the Butler County Correctional Institution, “Plaintiff and a co-defendant were placed in solitary confinement under cruel and unusual conditions * * for several weeks until they succumbed to the coercion of the defendants and/or their agents to submit guilty pleas to charges lodged against them.” Paragraph 12 contains this language, inter alia: “Plaintiff was stripped of all clothing and was unable even to wash himself. The food served to plaintiff was approximately one third of the daily ration provided for other prisoners, and was so inadequately prepared that plaintiff suffered intermittent bouts of diarrhea and vomitting. After several days the air became unbearably foul, yet defendants and/or their agents refused to open a window despite 100 degree temperature.” . The situation presented by this record is factually quite different from that before the courts in cases such as Ray v. Commonwealth of Pennsylvania, 263 F.Supp. 630 (W.D.Pa.1967); Cooper v. Hutchinson, 184 F.2d 119, 124-125 (3rd Cir. 1950), where equitable injunctive relief was sought and 28 U.S.C. § 1915 not involved; and Gaito v. Prasse, 312 F.2d 169 (3rd Cir. 1963), where equitable injunctive relief was sought. The past conditions about which plaintiff complains may no longer exist so that administrative relief would be useless. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
sc_petitioner	027	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. UNITED STATES v. COTTON et al. No. 01-687. Argued April 15, 2002 — Decided May 20, 2002 Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor General Olson, Assistant Attorney General Chertoff, Barbara McDowell, and Nina Goodman. Timothy J. Sullivan argued the cause for respondents. With him on the brief were Arthur S. Cheslock, James E. McCollum, Jr., Carter G. Phillips, Jeffrey T. Green, Paul J. Zidlicky, and Stanley H. Needleman. Clayton A. Sweeney, Jr., Mary Price, Peter Goldberger, David Porter, Joshua L. Dratel, and Lisa Bondareff Kemler filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging affirmance. Chief Justice Rehnquist delivered the opinion of the Court. In Apprendi v. New Jersey, 530 U. S. 466 (2000), we held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., at 490. In federal prosecutions, such facts must also be charged in the indictment. Id., at 476 (quoting Jones v. United States, 526 U. S. 227, 243, n. 6 (1999)). In this case, we address whether the omission from a federal indictment of a fact that enhances the statutory maximum sentence justifies a court of appeals’ vacating the enhanced sentence, even though the defendant did not object in the trial court. Respondent Stanley Hall, Jr., led a “vast drug organization” in Baltimore. 261 F. 3d 397, 401 (CA4 2001). The six other respondents helped run the operation. In October 1997, a federal grand jury returned an indictment charging respondents with conspiring to distribute and to possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§846 and 841(a)(1). A superseding indictment returned in March 1998, which extended the time period of the conspiracy and added five more defendants, charged a conspiracy to distribute and to possess with intent to distribute a “detectable amount” of cocaine and cocaine báse. The superseding indictment did not allege any of the threshold levels of drug quantity that lead to enhanced penalties under § 841(b). In accord with the superseding indictment, the District Court instructed the jury that “as long as you find that a defendant conspired to distribute or posses[s] with intent to distribute these controlled substances, the amounts involved are not important.” App. to Pet. for Cert. 6a (emphasis deleted). The jury found respondents guilty. Congress established “a term of imprisonment of not more than 20 years” for drug offenses involving a detectable quantity of cocaine or cocaine base. § 841(b)(1)(C). But the District Court did not sentence respondents under this provision. Consistent with the practice in federal courts at the time, at sentencing the District Court made a finding of drug quantity that implicated the enhanced penalties of § 841(b)(1)(A), which prescribes “a term of imprisonment which may not be . . . more than life” for drug offenses involving at least 50 grams of cocaine base. The District Court found, based on the trial testimony, respondent Hall responsible for at least 500 grams of cocaine base, and the other respondents responsible for at least 1.5 kilograms of cocaine base. The court sentenced respondents Hall and Powell to 30 years' imprisonment and the other respondents to life imprisonment. Respondents did not object in the District Court to the fact that these sentences were based on an amount of drug quantity not alleged in the indictment. While respondents’ appeal was pending in the United States Court of Appeals for the Fourth Circuit, we decided Apprendi v. New Jersey, supra. Respondents then argued in the Court of Appeals that their sentences were invalid under Apprendi, because the issue of drug quantity was neither alleged in the indictment nor submitted to the petit jury. The Court of Appeals noted that respondents “failed to raise this argument before the district court” and thus reviewed the argument for plain error. 261 F. 3d, at 403 (citing Fed. Rule Crim. Proc. 52(b)). A divided court nonetheless vacated respondents’ sentences , on the ground that “because an indictment setting forth all the essential elements of an offense is both mandatory and jurisdictional,... a court is without jurisdiction to . . . impose a sentence for an offense not charged in the indictment.” 261 F. 3d, at 404-405 (internal quotation marks omitted). Such an error, the Court of Appeals concluded, “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id., at 406. We granted certiorari, 534 U. S. 1074 (2002), and now reverse. We first address the Court of Appeals’ conclusion that the omission from the indictment was a “jurisdictional” defect and thus required vacating respondents’ sentences. Ex parte Bain, 121 U. S. 1 (1887), is the progenitor of this view. In Bain, the indictment charged that Bain, the cashier and director of a bank, made false statements “with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs” of the bank. Id., at 4. Before trial, the court struck the words “the Comptroller of the Currency and,” on the ground that they were superfluous. The jury found Bain guilty. Id., at 4-5. Bain challenged the amendment to the indictment in a petition for a writ of habeas corpus. The Court concluded that the amendment was improper and that therefore “the jurisdiction of the offence [was] gone, and the court [had] no right to proceed any further in the progress of the case for want of an indictment.” Id., at 13. Bain, however, is a product of an era in which this Court’s authority to review criminal convictions was greatly circumscribed. At the time it was decided, a defendant could not obtain direct review of his criminal conviction in the Supreme Court. See generally United States v. Sanges, 144 U. S. 310, 319-322 (1892); L. Orfield, Criminal Appeals in America 244-246 (1939). The Court’s authority to issue a writ of habeas corpus was limited to cases in which the convicting “court had no jurisdiction to render the judgment which it gave.” Bain, supra, at 3; see also Preiser v. Rodriguez, 411 U. S. 475, 485 (1973). In 1887, therefore, this Court could examine constitutional errors in a criminal trial only on a writ of habeas corpus, and only then if it deemed the error “jurisdictional.” The Court’s desire to correct obvious constitutional violations led to a “somewhat expansive notion of ‘jurisdiction,’” Custis v. United States, 511 U. S. 485, 494 (1994), which was “more a fiction than anything else,” Wainwright v. Sykes, 433 U. S. 72, 79 (1977). Bain's elastic concept of jurisdiction is not what the term “jurisdiction” means today, i. e., “the courts’ statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 89 (1998). This latter concept of subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived. Consequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court. See, e. g., Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). In contrast, the grand jury right can be waived. See Fed. Rule Crim. Proc. 7(b); Smith v. United States, 360 U. S. 1, 6 (1959). Post-Bain eases confirm that defects in an indictment do not deprive a court of its power to adjudicate a case. In Lamar v. United States, 240 U. S. 60 (1916), the Court rejected the claim that “the court had no jurisdiction because the indictment does not charge a crime against the United States.” Id., at 64. Justice Holmes explained that a district court “has jurisdiction of all crimes cognizable under the authority of the United States . . . [and] [t]he objection that the indictment does not charge a crime against the United States goes only to the merits of the case.” Id., at 65. Similarly, United States v. Williams, 341 U. S. 58, 66 (1951), held that a ruling “that the indictment is defective does not affect the jurisdiction of the trial court to determine the case presented by the indictment.” Thus, this Court some time ago departed from Bain's view that indictment defects are “jurisdictional.” Bain has been cited in later cases such as Stirone v. United States, 361 U. S. 212 (1960), and Russell v. United States, 369 U. S. 749 (1962), for the proposition that “an indictment may not be amended except by resubmission to the grand jury, unless the change is merely á matter of form,” id., at 770 (citing Bain, supra). But in each of these cases proper objection had been made in the District Court to the sufficiency of the indictment. We need not retreat from this settled proposition of law decided in Bain to say that the analysis of that issue in terms of “jurisdiction” was mistaken in the light of later cases such as Lamar and Williams. Insofar as it held that a defective indictment deprives a court of jurisdiction, Bain is overruled. Freed from the view that indictment omissions deprive a court of jurisdiction, we proceed to apply the plain-error test of Federal Rule of Criminal Procedure 52(b) to respondents’ forfeited claim. See United States v. Olano, 507 U. S. 725, 731 (1993). “Under that test, before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U. S. 461, 466-467 (1997) (quoting Olano, supra, at 732). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” 520 U. S., at 467 (internal quotation marks omit-, ted) (quoting Olano, supra, at 732). The Government concedes that the indictment’s failure to allege a fact, drug quantity, that increased the statutory maximum sentence rendered respondents’ enhanced sentences erroneous under the reasoning of Apprendi and Jones. The Government also concedes that such error was plain. See Johnson, supra, at 468 (“[Wjhere the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration”). The third inquiry is whether the plain error “affect[ed] substantial rights.” This usually means that the error “must have affected the outcome of the district court proceedings.” Olano, supra, at 734. Respondents argue that an indictment error falls within the “limited class” of “structural errors,” Johnson, supra, at 468-469, that “can be corrected regardless of their effect on the outcome,” Olano, supra, at 735. Respondents cite Silber v. United States, 370 U. S. 717 (1962) (per curiam), and Stirone v. United States, supra, in support of this position. The Government counters by noting that Johnson’s list of structural errors did not include Stirone or Silber, see 520 U. S., at 468-469, and that the defendants in both of these cases preserved their claims at trial. As in Johnson (see id., at 469), we need not resolve whether respondents satisfy this element of the plain-error inquiry, because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. The error in Johnson was the District Court’s failure to submit an element of the false statement offense, materiality, to the petit jury. The evidence of materiality, however, was “overwhelming” and “essentially uncontroverted.” Id., at 470. We thus held that there was “no basis for concluding that the error ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’” Ibid. The same analysis applies in this case to the omission of drug quantity from the indictment. The evidence that the conspiracy involved at least 50 grams of cocaine base was “overwhelming” and “essentially uncontroverted.” Much of the evidence implicating respondents in the drug conspiracy revealed the conspiracy’s involvement with far more than 50 grams of cocaine base. Baltimore police officers made numerous state arrests and seizures between February 1996 and April 1997 that resulted in the seizure of 795 zip-lock bags and clear bags containing approximately 380 grams of cocaine base. 20 Record 179-244. A federal search of respondent Jovan Powell’s residence resulted in the seizure of 51.3 grams of cocaine base. 32 id., at 18-30. A cooperating co-conspirator testified at trial that he witnessed respondent Hall cook one-quarter of a kilogram of cocaine powder into cocaine base. 22 id., at 208. Another cooperating co-conspirator testified at trial that she was present in a hotel room where the drug operation bagged one kilogram of cocaine base into ziplock bags. 27 id., at 107-108. Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base. Respondents emphasize that the Fifth Amendment grand jury right serves a vital function in providing for a body of citizens that acts as a check on prosecutorial power. No doubt that is true. See, e. g., 3 Story, Commentaries on the Constitution § 1779 (1883), reprinted in 5 The Founders’ Constitution 295 (P. Kurland & R. Lerner eds. 1987). But that is surely no less true of the Sixth Amendment right to a petit jury, which, unlike the grand jury, must find guilt beyond a reasonable doubt. The important role of the petit jury did not, however, prevent us in Johnson from applying the longstanding rule “that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right....” Yakus v. United States, 321 U. S. 414, 444 (1944). In providing for graduated penalties in 21 U. S. C. § 841(b), Congress intended that defendants, like respondents, involved in large-scale drug operations receive more severe punishment than those committing drug offenses involving lesser quantities. Indeed, the fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments. The real threat then to the “fairness, integrity, and public reputation of judicial proceedings” would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial. Cf. Johnson, supra, at 470 (quoting R. Traynor, The Riddle of Harmless Error 50 (1970)). Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. In 1889, Congress authorized direct review of capital cases in the Supreme Court. See 25 Stat. 655. In 1891, this right was extended to defendants in all cases involving “infamous crime[s].” 26 Stat. 827; see In re Claasen, 140 U. S. 200 (1891). Respondents also argue that even if the indictment defect is not structural error, it did affect their substantial rights because they were sentenced to more than the 20-year maximum that § 841(b) authorizes without regard to drug quantity. The Government responds that the defendants had notice that their sentences could exceed 20 years, and that the grand jury would have found that the conspiracy involved at least 50 grams of cocaine base had the Government sought such an allegation. Respondents challenged the presentence reports’ assignment of a base offense level of 38, which is applicable to 1.5 kilograms or more of cocaine base. But they never argued that the conspiracy involved less than 50 grams of cocaine base, which is the relevant quantity for purposes of Apprendi, as that is the threshold quantity for the penalty of life imprisonment in 21 U. S. C. § 841(b)(1)(A). 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_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. Lester D. KING, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee. No. 85-1666. United States Court of Appeals, Tenth Circuit. Sept. 2, 1988. Siegfried Hesse, Berkeley, Cal. (E. Elizabeth Summers, Berkeley, Cal., of counsel, and Frederick L. Nelson, Hildebrand, McLeod & Nelson, Oakland, Cal. and Arturo G. Ortega, Ortega & Snead, Albuquerque, N.M., were also on the brief), for plaintiff-appellant. Booker Kelly, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M. (Larry White, White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M., was also on the brief), for defendant-appellee. Before HOLLOWAY, Chief Judge, and BARRETT and LOGAN, Circuit Judges. HOLLOWAY, Chief Judge. Plaintiff Lester King is a railroad brakeman for defendant Southern Pacific Transportation Co. (SP). King filed this action against SP under the Federal Employer’s Liability Act, 45 U.S.C. § 51-60 (FELA), the Boiler Inspection Act, 45 U.S.C. § 22-34 (BIA), and the Safety Appliance Act, 45 U.S.C. § 1-16 (SAA). King claims he suffered work-related injuries in two separate accidents, one in 1980 and one in 1984. As to the 1980 accident, King claims the locomotive seat in which he rode violated the BIA because it lacked armrests. Regarding the 1984 accident, King claims that SP violated the SAA because its train on which he was riding made a sudden and unexpected emergency stop, which King claims to have resulted from defective brakes on one of the railroad cars. He claims these alleged defects caused or contributed to his injuries. The district court granted summary judgment for SP on King’s BIA claim regarding the 1980 accident asserted in the original complaint (Count II), and a jury returned a verdict for SP on King’s FELA and other claims (Count I of original complaint and other counts of the amended complaint). King appeals from the adverse judgments. We affirm. I The 1980 Grade Crossing Collision On July 27, 1980, King was acting as head brakeman on a coal train operated by SP between Lordsburg, New Mexico, and El Paso, Texas. The train was operating on SP tracks with an SP crew. King was sitting in the brakeman’s chair behind the engineer in the lead locomotive, which belonged to the Santa Fe. Under its contract with the union SP was required to provide locomotive brakemen’s seats with armrests. However, King’s seat in the Santa Fe locomotive lacked armrests. En route the SP train collided with a cattle truck at a grade crossing. The crew saw the truck move onto the crossing, and King dropped to the floor of the locomotive. The engineer also dropped to the floor after throwing the train into emergency. King alleges that in the ensuing impact, he struck his neck and shoulder on an iron bar and twisted his back, ‘popping’ it. King was off work for two months but did not seek medical treatment until the fall of 1981. In 1983 King filed this action against SP under the BIA and the FELA for these injuries, claiming the locomotive was ‘unsafe’ because the brakeman’s seat lacked seatbelts and armrests for him to hold. The 1984 Emergency Stop On January 1, 1984, after this suit was filed concerning the 1980 accident, King was involved in another accident while working as rear brakeman in the caboose of an SP train. The train approached a red stop signal and the engineer, intending to slow the train, applied a low level of air to the train’s air brake line. However, instead of gradually slowing down, the train went into a sudden full emergency stop. This reaction is typically caused by a car with defective brakes (known as a “dynamiter” in railroad jargon) somewhere on the train. King claims the sudden impact threw him against the wall of the caboose, injuring his left forearm, neck and back. He was off work for four months after the accident. King did not attempt to file a supplemental complaint for the 1984 accident until after the court entered a summary judgment for SP with respect to the 1980 grade crossing collision claims. However, the court allowed King to file a supplemental complaint against SP under the FELA and the SAA for the injuries that allegedly resulted from the 1984 emergency stop. II The District Court’s Rulings A motion for summary judgment was filed by SP as to both Count I, the FELA claim, and as to Count II, the BIA claim, of the complaint concerning the 1980 grade crossing collision. After review of the motion and King’s response, the depositions and materials submitted, the court entered a Memorandum Opinion and Order granting summary judgment for SP as to Count II and denying the motion as to Count I. The district judge summarized the plaintiffs BIA claim. King contended he would not have suffered the injuries if armrests and a seatbelt had been present on the chair in which he was riding, and King claimed the lack of these devices made the chair unsafe within the meaning of the BIA. King argued that a genuine issue of fact existed whether the locomotive could be operated in a safe condition without such equipment. The court pointed out that SP argued that under applicable safety standards, the only requirement concerning engine seats was that they “be securely mounted and braced.” 49 C.F.R. § 229.119 (1980). Since the seat met this requirement, SP contended there was no violation of the BIA and that neither armrests nor seatbelts were parts or appurtenances of the engine in which King was riding so that the BIA was inapplicable. The court referred to deposition testimony that SP uniformly provides armrests on its locomotives chairs (King deposition at 92) and SP was supposed to provide armrests on brakemen’s chairs under its collective bargaining agreement. (See Pl.Exh. 38, p. 76, Sec. D, ¶ 3; King deposition at 90-95; Hanson deposition at 8-9). The contractual agreement since 1938 has required armrests in SP engines. (Hansen deposition at 8). The district court held that the fact that SP had undertaken to provide armrests on brakemen’s chairs in its own engines and had experimented with use of seatbelts on chairs did not establish that engine chairs without such devices are unsafe to operate, nor that they create “unnecessary peril to life or limb” under the BIA. The Secretary of Transportation, who was authorized to promulgate safety rules and regulations, had specifically addressed the subject of chairs in locomotives and had not seen fit to prescribe armrests as necessary to safe operation of locomotives. The court cited Southern Ry. v. Lunsford, 297 U.S. 398, 401-02, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936), and its statements that parts or attachments prescribed by order of the Interstate Commerce Commission are within the BIA, but that mere experimental devices that do not increase the peril but may prove helpful in an emergency, are not. Since the Secretary had addressed cab seats in 49 C.F.R. § 229.119 (1980) and had determined only that they must be securely mounted and braced, and the plaintiff did not allege otherwise, the SP motion for summary judgment on the BIA claim was granted. With respect to the FELA claim sounding in negligence, the court found that there were material issues of fact and denied summary judgment. A fact question was held to exist whether it was reasonably foreseeable that in the absence of armrests, harm was possible. As to the negligence claim under the FELA, the court found a fact question existed whether SP acted reasonably in allowing an engine on its line that was not equipped with armrests on locomotive chairs, in light of SP’s having provided armrests for over 40 years and brakemen’s demands for them. After ruling on SP’s motion for summary judgment, the court allowed King to file a supplemental complaint against SP asserting claims under the FELA and the Safety Appliance Act for injuries that allegedly resulted from the 1984 emergency stop. These claims were tried with King’s surviving FELA claim arising from the 1980 grade crossing collision. At trial, King abandoned his theory that SP was liable for failing to provide seatbelts, and he only argued that SP was liable for failing to provide armrests and for failing to operate its train in a careful and prudent manner at the time of the 1984 accident. At the close of all the evidence, King moved for a directed verdict on his claims arising from the 1984 accident. VIII R. at 957. The district court denied this motion and the jury returned a general verdict for SP. King appeals from the adverse judgments. Ill King’s Claims of Error On appeal, King asserts two main claims of error. First, he says the district court improperly granted summary judgment for SP on his BIA claim arising from the 1980 grade crossing collision, arguing that his locomotive seat was “unsafe” under the BIA even though it met federal regulations. Second, he claims that the district court should have directed a verdict in his favor on his SAA claim arising from the 1984 emergency stop, because there was no evidence to support a verdict in SP’s favor. King does not raise any question on appeal about his FELA claims. A. The Boiler Inspection Act and Failure to Provide Armrests The Boiler Inspection Act prohibits railroads from operating any locomotive unless the “locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb....” 45 U.S.C. § 28. The BIA also prohibits the operation of any locomotive that has not passed certain tests and inspections prescribed in the pertinent rules and regulations. Id. Under the BIA the Supreme Court has held that “[wjhatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of [the Secretary], are within the statute.” Southern Ry. v. Lunsford, 297 U.S. 398, 402, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936). In light of Lunsford, a carrier cannot be held liable under the BIA for failure to install equipment on a locomotive unless the omitted equipment (1) is required by federal regulations of the Secretary, or (2) constitutes an integral or essential part of a completed locomotive. Mosco v. Baltimore & O.R.R., 817 F.2d 1088, 1091 (4th Cir.), cert. denied, — U.S. -, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); see Marshall v. Burlington N., Inc., 720 F.2d 1149, 1152 (9th Cir.1983). King does not claim that the locomotive seat failed to satisfy the only pertinent federal regulation, which required that “[c]ab seats shall be securely mounted and braced.” 49 C.F.R. § 229.119(a) (1980). Instead, King argues the chair was “unsafe” because it lacked armrests. We must therefore consider whether a locomotive chair can be “unsafe” under the BIA if it conforms to pertinent regulations, but lacks additional safety features. King correctly asserts that a locomotive or its parts and appurtenances might satisfy federal regulations and still be “unsafe” under the BIA. See Mosco, 817 F.2d at 1091; Bolan v. Lehigh Valley R.R., 167 F.2d 934, 936 (2d Cir., 1948). That occurs when the railroad fails to maintain the locomotive or its parts and appurtenances so that the locomotive cannot be operated without unnecessary peril to life or limb. Such “failure to maintain” claims have been widely recognized as meritorious. However, those claims are entirely different from claims that a railroad is liable for failing to install additional safety devices which the Secretary of Transportation has not seen fit to require. Marshall, 720 F.2d at 1152. Such “failure to install” claims have been rejected. Id.; Mosco, 817 F.2d at 1091-92; Mahutga v. Minneapolis, St. P. & S.S.M.Ry., 182 Minn. 362, 234 N.W. 474, cert. denied, 283 U.S. 847, 51 S.Ct. 494, 75 L.Ed. 1456 (1931), cited with approval in Atchison, T. & S.F.Ry. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed. 748 (1937); cf. Herold v. Burlington N., Inc., 761 F.2d 1241, 1245 (8th Cir.), cert. denied, 474 U.S. 888, 106 S.Ct. 208, 88 L.Ed.2d 177 (1985). We agree with the conclusion reached by the district court in granting summary judgment for SP on the BIA claim. The arguments of King are essentially that the failure to provide armrests on the loeomo-tive seat was actionable because of the broad language and humanitarian purposes of the BIA; that recovery under the Act is not limited to cases of violations of specific safety standards or failure to have specified parts or attachments; that King had a valid claim under the general provision also requiring, beyond the minimal BIA requirements, that a locomotive and all its parts and appurtenances be in proper condition and safe to operate; and that SP’s uniform policy of equipping its locomotives with armrests and its agreement with the union to do so made armrests an appurtenance of SP’s locomotives and rendered SP liable for using a locomotive without armrests. Appellant’s Opening Brief 8, 12-13; Appellant’s Reply Brief 1. The arguments do not convince us that the district court’s ruling was in error. The BIA has been liberally construed by the courts, being a remedial statute. Garcia v. Burlington N.R.R., 818 F.2d 713, 715 (10th Cir.1987). Nevertheless, it is whatever “in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of [the Secretary]” that is within the statute’s reach. Lunsford, 297 U.S. at 402, 56 S.Ct. at 506; Mosco, 817 F.2d at 1088, 1091. There is no claim that SP’s failure to attach armrests here violated a specific regulation. As the district judge pointed out, the Secretary’s regulations addressed the cab seats, requiring only that “cab seats shall be securely mounted and braced.” 49 C.F.R. § 229.119 (Oct. 1, 1980). Thus only if the armrests omitted here were an integral or essential part of a completed locomotive would King have a viable BIA claim. Mosco, 817 F.2d at 1091. We are not persuaded that the armrests were such an integral or essential part of the locomotive. See Lunsford, 297 U.S. at 402, 56 S.Ct. at 506; Mosco, 817 F.2d at 1091. There is no showing of such character of the armrests, and when the cab chairs were considered in the regulations, armrests were not addressed at all. Nor do we think that the uniform installation of them on other SP locomotives or the railroad’s agreement to do so makes them such an integral appliance so as to come within the statute. See Lunsford, 297 U.S. at 402, 56 S.Ct. at 506. The cases that hold the railroad liable for failing to maintain or keep in place a device already placed on the locomotive are distinguishable. See, e.g., Herold v. Burlington N., Inc., 761 F.2d 1241, 1246-47 (8th Cir.), cert. denied, 474 U.S. 888, 106 S.Ct. 208, 88 L.Ed.2d 177 (1985). King’s case is strengthened by SP’s uniform installation of armrests on other locomotives and the agreement to install them. Nevertheless we do not think King’s claim under the BIA is viable, the armrest not being an integral or essential part of a completed locomotive. In sum, we hold that the summary judgment for SP on the BIA claim was not in error. B. The Safety Appliance Act Claim King’s remaining claim of error concerns the Safety Appliance Act and his claim arising from the January 1, 1984, accident when King was working as rear brakeman in the caboose of an SP train. In essence this claim of error is that the district court erred in denying King’s motion for a directed verdict on his SAA claim which was made at the close of the evidence. He says that the evidence was un-contradicted and undisputed that the cause of the sudden emergency stop of the train in 1984 was a “dynamiter,” a car with a defective brake condition; that as a result King was thrown into the wall of the caboose in which he was riding; and that he received painful and substantial injuries from this accident. There was no evidence, he says, which would justify a verdict against him on this SAA claim and he was therefore entitled to a directed verdict on it. King therefore requests a new trial on this claim. Like the BIA, the SAA is considered an amendment to the FELA. Urie v. Thompson, 337 U.S. 163, 189, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282 (1949); see Metcalfe v. Atchison, T. & S.F.Ry., 491 F.2d 892, 895 (10th Cir.1974). Liability of the railroad under the SAA for injuries inflicted as a result of the Act’s violation follows from unlawful use of prohibited defective equipment. Coray v. Southern Pac. Co., 335 U.S. 520, 522-23, 69 S.Ct. 275, 276-77, 93 L.Ed. 208 (1949). King was therefore entitled to recover under the SAA if “the undisputed evidence established that the train suddenly stopped because of defective air-brake appliances ... if this defective equipment was the sole or a contributory proximate cause of the [injuries].” Id. at 523, 69 S.Ct. at 277. For a new trial to be ordered as King requests, he must demonstrate that “the verdict is clearly, decidedly, or overwhelmingly against the weight of the evidence.” Black v. Hieb’s Enter’s., 805 F.2d 360, 363 (10th Cir.1986). Here there was testimony that would support an inference that King’s injuries did not result from the 1984 emergency stop. For example, Dr. Adler, an orthopedic surgeon called by SP, testified that King’s medical records were “consistent with the concept that Mr. King has had long-standing, gradually worsening back complaints that are associated with the general activities and life style rather than there being dramatic change in relationship with any one of the specific injuries that he’s had in the past.” VI R. 587; see VII R. 609-610. Dr. Adler did state as to King’s neck problem that “his condition was clearly made worse after the accident on July 27, 1980 ...” VII R. 604. With respect to King’s lower back and neck conditions, following the Doctor’s March 1984 examination the Doctor felt that King had a spon-dylolysis condition in the lower back and disc degeneration at one level of his neck; the Doctor also said King had a spinal stenosis or narrowing of nerve spaces in the spinal canal. Id. at 603. He said whether it was from a fall on the floor of the caboose cab or in the engine, or picking up a toy off the floor, a reaction is set up; but “these things can occur in relationship to his non-work activities as well as his work activities.” VII R. 604. Moreover, King admitted there had been other occasions when he got “knocked about in a caboose or something,” VII R. 782-83, and that he saw chiropractors numerous times for several years before the 1980 accident. Id. at 784-85. We cannot say the verdict for SP on the SAA 1984 claim is clearly, decidedly or overwhelmingly against the weight of the evidence. While King points to substantial evidence in his favor, it must be remembered that King bore the burden of proof regarding causation, and the jury was entitled to judge the weight of his evidence. See 9 J. Wigmore, Evidence § 2495 (Chad-bourne rev. 1981) (p. 394-95); 9 C. Wright & A. Miller, Federal Practice & Procedure §§ 2527, 2535 (1971). Under the standard that applies we are not convinced that we should reverse the judgment and order a new trial. IV The summary judgment in favor of SP regarding King’s BIA claim and the judgment entered on the jury’s verdict regarding King’s SAA claim are accordingly AFFIRMED. . The BIA and the SAA are regarded as amendments to the FELA. Urie v. Thompson, 337 U.S. 163, 189, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282 (1949). The BIA supplements the FELA to provide additional public protection and facilitate employee recovery. Id. at 189, 191, 69 S.Ct. at 1034, 1035; see Garcia v. Burlington N.R.R., 818 F.2d 713, 715 (10th Cir.1987). The BIA is to be considered together with other federal railroad safety laws, and is to be construed liberally to carry out their remedial and humanitarian purposes. Southern Ry. v. Bryan, 375 F.2d 155, 158 (5th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 82, 19 L.Ed.2d 83 (1967). The FELA and the BIA further their humanitarian goals by imposing different types of liability. Liability under the FELA is premised on the railroad’s negligence, however small. 45 U.S.C. § 51; Rogers v. Missouri Pac. R.R., 352 U.S. 500, 508-09, 77 S.Ct. 443, 449-50, 1 L.Ed.2d 493 (1957). In contrast, the BIA imposes on the carrier an absolute duty to maintain the locomotive, and all its parts and appurtenances, in proper condition, and safe to operate without unnecessary peril to life or limb. Lilly v. Grand Trunk W.R.R., 317 U.S. 481, 485, 63 S.Ct. 347, 350, 87 L.Ed. 411 (1943). The FELA allows recovery in a broad range of situations, while liability under the BIA only occurs under narrow circumstances. As a result, claims which cannot be maintained under the BIA are often actionable under the FELA. See, e.g., Garcia, 818 F.2d at 720; McKenna v. Washington Metro. Area Transit Auth., 829 F.2d 186, 188 (D.C.Cir.1987); Mosco v. Baltimore & O.R.R., 817 F.2d 1088, 1092 (4th Cir.), cert. denied, — U.S. -, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); Steer v. Burlington N., Inc., 720 F.2d 975, 976-77 (8th Cir.1983). . The BIA, as amended by an Act of March 15, 1915, ch. 169, 38 Stat. 1192, granted the Interstate Commerce Commission the power to regulate "all parts and appurtenances” of locomotives. That power was transferred to the Secretary of Transportation in 1966 by the Department of Transportation Act, 49 U.S.C. §§ 1651— 1659 at 1655(e)(l)(E)(1976). See generally, Marshall v. Burlington N., Inc., 720 F.2d 1149, 1192 (9th Cir.1983). The regulations are the Federal Locomotive Safety Standards, 49 C.F.R. § 229.1 (1980) et seq., issued under the BIA. The Supreme Court has held, on Commerce Clause grounds, that federal regulation of locomotives under the BIA occupies the field. Napier v. Atlantic Coast L.R.R., 272 U.S. 605, 610-13, 47 S.Ct. 207, 208-10, 71 L.Ed. 432 (1926). States are thus preempted and may not prescribe requirements for locomotives, no matter how commendable or however different their purpose. Id. . These claims generally occur when a railroad has allowed a locomotive, or its parts or appurtenances to deteriorate so that the locomotive cannot be operated safely, e.g., Whelan v. Penn Cent. Co., 503 F.2d 886 (2d Cir.1974) (rear step loose and in disrepair); St. L.S.W. Ry. v. Williams, 397 F.2d 147 (5th Cir.1968) (oil on locomotive steps); Bolan v. Lehigh Valley R.R., 167 F.2d 934 (2d Cir.1948) (pilot step worn and bent); Fredericks v. Erie R.R., 36 F.2d 716.(2d Cir.1929) (drain cock, although properly located, was unsafe because it could be pulled loose), or when a railroad has allowed foreign substances to accumulate on locomotive surfaces or walkways, e.g., Lilly v. Grand Trunk W.R.R., 317 U.S. 481, 485-89, 63 S.Ct. 347, 350-53, 87 L.Ed. 411 (1943) (failure to keep ice off locomotive tender surfaces violated express I.C.C. regulation to keep surfaces clean); Whelan v. Penn Cent. Co., 503 F.2d 886 (2d Cir.1974) (rear step coated with ice); Gowins v. Pennsylvania R.R., 299 F.2d 431 (6th Cir.1962) (oil on locomotive walkways); Calabritto v. New York, N.H. & H.R.R., 287 F.2d 394 (2d Cir.) (sand and oil on locomotive platform), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387 (1961), or when a railroad has installed or placed items in a dangerous location on a locomotive, e.g., Chicago, R.I. & P.R.R. v. Speth, 404 F.2d 291 (8th Cir.1968) (explosive torpedoes improperly placed on rack inside cab); Heiselmoyer v. Pennsylvania R.R., 243 F.2d 773 (3d Cir.) (engineer’s seat and brake valve were installed too closely to each other so that they came into contact), cert. denied, 355 U.S. 833, 78 S.Ct. 47, 2 L.Ed.2d 44 (1957); Delevie v. Reading Co., 176 F.2d 496 (3d Cir.1949) (gear mechanism installed above foot-board so as to make access to cab unsafe); Louisville & N.R.R. v. Botts, 173 F.2d 164 (8th Cir.1949) (bolt heads protruding from locomotive footboard). . Section 2 of the BIA (45 U.S.C. § 23) provides: It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 22 to 29 and 31 to 34 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for. . There are lengthy procedural arguments made by both sides as to whether the claim of error respecting the SAA claim is preserved for this appeal by the motion made by King below, and as to the standard of review on the issue. We need not go into all these matters. In his opening and reply briefs all King seeks on this SAA claim arising from the 1984 accident is a new trial. Viewing the record under the standard most favorable to King in arguing for a new trial, we nevertheless hold that King has not made a proper showing. 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. COMPARET v. UNITED STATES. No. 3534. Circuit Court of Appeals, Tenth Circuit. Dec. 3, 1947. Wm. Hedges Robinson, Jr. (of Shuteran, Robinson & Harrington), of Denver Colo., for appellant. Jason D. Lee, of Washington, D. C. (A. Devitt Vanech, Asst. Atty. Gen., Max M. Bulkeley, U. S. Atty., of Wray, Colo., and Roger P. Marquis, of Washington, D. C., on the brief), for appellee. Before BRATTON, HUXMAN and MURRAH, Circuit Judges. MURRAH, Circuit Judge. The sole question presented by this appeal is whether the fair market value of appellant’s property, taken by the Government under right of eminent domain, should have been determined as of June 15, 1942, the date on which the Government took and acquired title to the property, or as of the date of trial in the condemnation proceedings. Acting under authority of the Condemnation Act of August 1, 1888, 25 Stat. 357, 40 U.S.C.A. § 257 and the Second War Powers Act of March 27, 1942, 56 Stat. 177, 50 U.S.C.A. 171a, the United States on June 15, 1942 filed a petition to condemn certain lands in Adams County, Colorado, for the Rocky Mountain Arsenal, 156.36 acres of which were owned by appellant, and an order of immediate possession was entered the same day. On November 30, the United States deposited the sum of $13,445.43 with the Clerk of the Court, as estimated just compensation under its declaration of taking and on December 5, the court decreed title in the United States. The estimated compensation, tendered by the Government, was not satisfactory to appellant and on June 20, 1945, trial was commenced to determine “just compensation” for the tract of land. At the conclusion of trial, the court instructed the jury that it should “value the land taken by the Government, according to its actual fair market value on the 15th day of June, 1942, which was the date upon which the United States acquired title to the property”. Although all of appellant’s testimony in the trial pertained to the 1942 land values, and no objection was made to the court’s instruction, she now contends on appeal that it was an erroneous statement of the law and she was entitled to have the jury determine the fair market value of her land as of the date of trial. In support of this contention appellant cites many Colorado cases holding that the present market value of land means market value at the time of trial, and invokes the statutory rule that condemnation proceedings in a Federal court “shall conform, as near as may be, to the practice, pleadings, forms and proceedings” afforded by the law of the state in which the court sits. 40 U.S.C.A. § 258. But, this statute is procedural only. It does not, and could not, “affect questions of substantive right, — such as the measure of compensation, — grounded upon the Constitution of the United States”. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 283, 87 L.Ed. 336, 147 A.L.R. 55. See also United States v. 13,255.53 Acres of Land, 3 Cir., 158 F.2d 874; United States v. Kansas City, 10 Cir., 159 F.2d 125. When on June 15, 1942 the petition of condemnation was filed and an order of immediate possession entered, appellant was deprived of her property and the United States had the right of possession. Estimated compensation was thereafter tendered into court and an order vesting title in the United States was entered — nothing more was required other than a judicial proceedings to determine whether the sum tendered by the United States was “just compensation” as that term is used in the Fifth Amendment. When the Government acquired possession in 1942 there was a “taking” of appellant’s property for public use; compensation therefor was then due and payable, and under the Federal rule of decisions its fair market value should be determined as of that date. Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; Brooks-Scanlon Corp. v. United States, 265 U.S. 106, 44 S.Ct. 471, 68 L.Ed. 934; Seaboard Air Line Ry. v. United States, 261 U.S. 299, 43 S.Ct. 354, 67 L.Ed. 664; United States v. Rogers, 255 U.S. 163, 41 S.Ct. 281, 65 L.Ed. 566; 11,000 Acres of Land v. United States, 5 Cir., 152 F.2d 566; Lewis Eminent Domain, 3d Ed., Section 705, p. 1220. Moreover, since no objections were made to the crucial instruction of the court until after the verdict of the jury, the complaint comes too late for cognizance on appeal. Federal Rules of Civil Procedure, rule 51, 28 U.S.C.A. following section 723c;, Krug v. Mutual Ben. Health & Accident Ass’n, 8 Cir., 120 F.2d 296; Hupp Motor Car Corporation v. Wadsworth, 6 Cir., 113 F.2d 827; Standard Oil Co. v. Burleson, 5 Cir., 117 F.2d 412; Baltimore & O. R. R. v. Corbin, 73 App.D.C. 124, 118 F.2d 9. The judgment is affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_counsel1	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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Julie DOMMER, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. Jack F. CRAWFORD, Prosecuting Attorney for the 31st Judicial Circuit for the State of Indiana, Defendant-Appellant. No. 80-1364. United States Court of Appeals, Seventh Circuit. Argued Sept. 26, 1980. Decided July 7, 1981. Rehearing and Rehearing En Banc Denied July 9, 1981. Before PELL, Circuit Judge, SKELTON, Senior Judge, and WOOD, Circuit Judge. The Honorable Byron G. Skelton, Senior Judge of the United States Court of Claims, sitting by designation. PER CURIAM. Plaintiffs filed this class action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief for the unlawful practice of the Gary, Indiana police in arresting and holding individuals in excess of twenty-four hours without felony charges or producing them before a magistrate for a determination of probable cause to hold the individuals, contrary to Indiana law, I.C. 18-1-11-8. The class was certified to be those persons without counsel who were arrested and incarcerated for an unreasonable time without compliance with the applicable Indiana statute. The defendants were various officials of the City of Gary and Lake County, Indiana, including appellant Jack H. Crawford, prosecuting attorney for the 31st Judicial Circuit for the State of Indiana. The district court granted the relief sought in the form of a declaratory judgment and mandatory injunction. Only the prosecuting attorney has appealed. Count C of the complaint is the only Count before us on appeal, and only insofar as it pertains to defendant Crawford. The prosecuting attorney was not originally named as a defendant. Upon motion of certain other defendants, Crawford’s predecessors in office were named as parties, with Crawford substituted for his predecessors less than a week prior to the entry of judgment. Prior to amendment, Count C contained allegations only of improper police delay. When the prosecuting attorney was named as a defendant, the following paragraph was added to section III of Count C, no other changes being made in the complaint: la. After the arrest of one suspected of committing a crime, the police officers are responsible for preparing the case for presentation to the Lake County Prosecuting Attorney who makes the final decision on whether or not to file a charge in a court in Lake County with criminal jurisdiction. Thus there are two possible delays in bringing an accused into court: a) a delay caused by the police in processing the case for presentation to the prosecuting attorney, and b) a delay caused by the prosecuting attorney in the preparation, service and filing of the charge in court. Defendant city officials contend they cannot remedy the delay caused by the defendant prosecuting attorney and his staff. A state officer named in a suit brought under 42 U.S.C. § 1983 must be in some manner responsible for the alleged deprivation of rights. See Duncan v. Duckworth, 644 F.2d 653 at 655 (7th Cir. 1981) (hospital administrator is appropriate party where prison hospital conditions are subject of suit). In this case, the amended portion of Count C informs us about “two possible delays,” one being caused by the prosecuting attorney in filing a charge. But since Crawford in his capacity as a prosecutor has no authority under Indiana law to order city police to detain arrestees past the statutory time limits, the complaint fails to state a cause of action against him. Unlike the hospital administrator in Duncan, Crawford has no responsibilities that make him a suitable defendant in this case. It is the city police force and not the prosecutor’s office that has the responsibility under Indiana law to bring before a magistrate those they arrest. Thus, as regards the city police, “[w]henever any arrest has been made by any member of the police force, the officer making the arrest shall bring the person before the court having jurisdiction of the offense, to be dealt with according to law .... But no person may be detained longer than twenty-four [24] hours, except where Sunday intervenes, in which case no person may be detained longer than forty-eight [48] hours.” I.C. 18-1-11-8 (emphasis added; brackets in original). Custody, then, is vested solely in the city police, not the prosecutor. It is the city police who are by law charged with the duty to honor the statutory time limits or else release the arrestees. Because the prosecutor’s responsibility to conduct criminal cases does not encompass the initial appearance procedure as applied to individuals arrested by city police, the complaint fails to state a cause of action against Crawford. That is so regardless of the plaintiffs’ assertions in their briefs that the prosecutor is involved at the initial appearance stage because as a matter of practice the prosecutor’s office represents the state’s interests during that proceeding. The plaintiffs’ point is irrelevant, since it is not questioned on appeal that the relief sought in the complaint is directed to the persons having custody of the class members, not to the conduct of the hearing. The complaint vaguely alleges that there are “two possible delays,” only one of which is attributable to the prosecuting attorney as he is the one who prepares, serves and files a charge in court. It is not alleged that the prosecutor is actually responsible for prolonged detention. Nor is it alleged that the prosecuting attorney has some statutory control over detention which he is ignoring. It cannot be said that under Indiana law a prosecutor who may be merely dilatory in fulfilling the responsibilities of his own office thereby provides local police officials with a waiver of their statutory duties placing a limit on detention. The plaintiffs conclude the only paragraph of their complaint relating in part to the prosecutor by alleging that the other defendants, the city officials, claim they cannot remedy any possible delay caused by the prosecutor. In effect the plaintiffs allege that the defendant city officials claim to have some excuse for their actions in an attempt to shift part of the blame to the codefendant prosecutor. However, not even the codefendants, according to the plaintiffs’ complaint, claim that the prosecuting attorney, somehow by orders or otherwise, causes them to violate the Indiana statute which places the detention restrictions squarely on them, not the prosecutor. The issue is solely detention and neither the complaint nor Indiana law puts responsibility for detention on the prosecutor. The relief accorded must be directed to those who impinge plaintiffs’ liberty by detabling arrestees for too long a period: i. e., the Gary City police. Complete relief was accorded the class when the district court entered its injunction requiring the city police to promptly bring class members before a court for an initial appearance or else release them from custody. If the prosecutor now wishes to have anything to do with the initial appearances of arrestees, he will have to conform his timetable of participation to that established by statute for the city police, and enforceable under the district court’s order. Insofar as it relates to the actions of defendant Crawford, the district court’s order is reversed. The rest of the order, directed to the Gary police, remains undisturbed by this decision. . A prior opinion was issued in this case and is reported at 7 Cir., 638 F.2d 1031. A timely Petition for Rehearing with Suggestion for Rehearing En Banc was filed. That Petition is denied. The original opinion is withdrawn and superceded by this opinion. . The injunction required the defendants as a group to bring arrestees for an initial appearance before a magistrate within twenty-four hours of arrest, except in certain circumstances. The terms of the injunction did not delineate any action to be taken specifically by the prosecutor. The injunction required the defendants to file with the district court a monthly report that detailed their compliance with the injunction’s terms. Eleven months after entry of the injunction, the district court lifted the defendants’ obligation to make any further reports. . Counts A and B alleged a variety of conditions at the Gary City Jail that were deleterious to the health of the class members. Those Counts were the subject of a declaratory judgment stipulated to by the parties and approved and entered by the district court. They are not involved in this appeal. . Cf. Grooms v. Férvida, Ind.App., 396 N.E.2d 405, 411 (1979), where the court notes that the strict time limits contained in I.C. 18-1-11-8 apply solely to city police, and not to the state or county police when they act in concert with the prosecuting attorney. See I.C. 17-3-14-5, defining the powers and duties of the county police. The county and state police forces were not parties to this case. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. BREEN v. SELECTIVE SERVICE LOCAL BOARD NO. 16 et al. No. 65. Argued November 19, 1969 Decided January 26, 1970 Emanuel Margolis argued the cause for petitioner. With him on the brief were Lawrence P. Weisman and Melvin L. Wulf. Assistant Attorney General Ruckelshaus argued the cause for respondents. With him on the brief were Attorney General Mitchell, Assistant Attorney General Wilson, Morton Hollander, and Ralph A. Fine. George Soli and Joseph B. Robison filed a brief for the American Jewish Congress as amicus curiae urging reversal. Mr. Justice Black delivered the opinion the Court. This case raises a question concerning the right of a young man ordered to report for induction into the Armed Forces to challenge the legality of that order prior to reporting for duty. Petitioner Breen, while enrolled in the Berklee School of Music in Boston, Massachusetts, was given a II-S student classification by his local draft board, and deferred from military service pursuant to the provisions of the Military Selective Service Act of 1967, 81 Stat. 100, 50 U. S. C. App. § 451 et seq. (1964 ed. and Supp. IV). According to an agreed stipulation of facts, in November 1967 he surrendered his draft registration card to a minister at a public gathering “for the sole purpose of protesting United States involvement in the war in Vietnam.” Shortly thereafter his local draft board declared he was “delinquent” for failing to have his draft card in his possession and at the same time reclassified him I-A— available for military service. He appealed this reclassification to the appropriate Selective Service Appeal Board, and while that appeal was pending filed this suit in the United States District Court in February 1968, seeking an injunction against any possible induction into the Armed Forces on the ground that his delinquency reclassification was invalid. The respondent local board moved to dismiss the suit for want of jurisdiction, relying on § 10 (b) (3) of the Act which provides that: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction . . . ,” 50 U. S. C. App. § 460 (b)(3) (1964 ed., Supp. IV). The District Court granted the motion to dismiss and Breen appealed that decision to the Court of Appeals. While the appeal was pending, we rendered our decision in Oestereich v. Selective Service Bd., 393 U. S. 233 (1968), holding that §10 (b)(3) did not bar pre-induction judicial review in the circumstances presented in that case. Although Breen argued that Oestereich controlled his own case, the Court of Appeals affirmed the District Court’s dismissal of the suit, with one judge dissenting, holding that Oestereich did not cover this case and § 10 (b) (3) therefore required dismissal of the suit. 406 F. 2d 636 (C. A. 2d Cir. 1969). We granted a petition for certiorari, 394 U. S. 997 (1969), and, because we conclude that Oestereich does control this case, we reverse the judgment of the Court of Appeals. In Oestereich a student preparing for the ministry surrendered his draft registration card in protest against the war in Vietnam and was reclassified as a “delinquent.” He then filed suit seeking to enjoin his induction, claiming that he was being inducted contrary to the clear statutory requirement that students preparing for the ministry “shall be exempt from training and service” under the Act, 50 U. S. C. App. §456 (g). We held in that case that since Congress had unambiguously said that students preparing for the ministry were not to be drafted and, since there was no indication in the statute that such exemptions could be denied for “delinquency,” Oestereich’s induction was unlawful and in such a case § 10 (b) (3) would not be interpreted to bar pre-induction judicial review and thereby force the registrant to submit to an illegal induction or risk the possibility of a criminal prosecution to regain his exempt status. In the present case petitioner Breen argues that he, like Oestereich, should not be inducted and he relies on § 6 (h)(1) of the Act, which provides that: “Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment.” 50 U. S. C. App. § 456 (h)(1) (1964 ed., Supp. IV). In his complaint Breen alleged that he was a 20-year-old student and argued that he was clearly qualified for a student deferment. The Government has never contested Breen's factual allegations concerning his student status, nor has it argued that he is not qualified for such a deferment for any reason except the alleged “delinquency.'' As in Oestereich, we do not find any indication that Congress intended to allow the draft boards to deprive otherwise qualified students of their deferments for the reasons relied upon in this case. In concluding that Oestereich did not control this case, the Court of Appeals felt that the reference in § 6 (h)(1) to “such rules and regulations as [the President] may prescribe” was an indication that Congress authorized revocation of student deferments for violations of the delinquency regulations. 406 F. 2d, at 638. That conclusion must be rejected for several reasons. The explicit language of the Act provides that the President “shall” provide for the deferment of undergraduate students except as otherwise provided by the terms of the Act itself, and Congress then set forth the specific conditions that a student must meet to qualify for such a deferment. The reference to “rules and regulations” is clearly intended only to authorize such additional administrative procedures as the President may find necessary to insure that all qualified students are given the deferment that Congress provided in § 6. There is nothing in the language of the Act itself that indicates a congressional desire to allow the President to add to or subtract from the factors specified in the statute for determining when students would be deferred. The legislative history of §6 (h)(1) clearly indicates that Congress intended that only the conditions specified in that section need be met to warrant a student deferment. Prior to the 1967 Act the draft law stated that student deferments were provided only according to presidential regulation and in practice such deferments were subject to the discretion of the local draft boards. The committee reports and floor debates on the 1967 Act show that a primary purpose of the amendments was to eliminate this local option and provide clear, uniform standards for undergraduate student deferments. When Congress thus acted to replace discretionary standards with explicit requirements for student deferments, it did not specifically provide or in any way indicate that such deferred status could be denied because the registrant failed to possess his registration certificate. Finally, any contention that “delinquency” induction is proper in this case must be rejected for the reasons set forth in our decision in Gutknecht v. United States, ante, p. 295, holding that induction pursuant to the delinquency regulations has not been authorized by Congress. The Attorney General advances another argument for distinguishing this case from Oestereich, supra. He points out that Oestereich met the requirements for a statutory “exemption” from military service, while Breen is at best qualified only for a statutory “deferment.” On the basis of this observation he urges that the provisions of § 10 (b) (3) preclude pre-induction judicial review in all cases of deferments and that Oestereich provides an exception only in certain cases where an exemption is claimed. We fail to see any relevant practical or legal differences between exemptions and deferments. The effect of either type of classification is that the registrant cannot be inducted as long as he remains so classified. Congress has specifically said that the only persons who may be inducted into the Armed Forces are those “who are liable for such training and service and who at the time of selection are registered and classified, but not deferred or exempted.” 50 U. S. C. App. § 455 (a)(1) (1964 ed., Supp. IV). (Emphasis added.) Thus it is clear that the crucial distinction in draft classifications is between individuals presently subject to induction and those who are not so subject, either because of deferment or exemption. The Attorney General also argues that a rational distinction exists in the statutory scheme between deferments which merely postpone the time when a registrant will serve and exemptions which place the registrant “outside the manpower pool.” Brief for the Respondents 20-21. A careful reading of the entire Act indicates that no such consistent distinction is preserved. Congress has provided that “[n]o . . . exemption or deferment . . . shall continue after the cause therefor ceases to exist.” 50 U. S. C. App. §456 (k). Many of the “exemptions” are not absolute, as the Attorney General implies, but conditioned on certain factors. Thus an exempt ministerial student like Oestereich will lose that exempt status if he withdraws from study in preparation for the ministry. Similarly exempt veterans can be inducted into the Armed Forces if Congress declares a war or national emergency. 50 U. S. C. App. § 456 (b). On the other hand there is absolutely no assurance that an individual who is simply deferred will only have his military obligation postponed. So long as a registrant remains in a deferred classification he cannot be inducted, and deferment past the maximum age of draft liability would effectively exempt the registrant from compulsory military service. Although a registrant like Breen cannot be deferred as an undergraduate student past his 24th birthday, he may continue to be deferred on the basis of extreme hardship to dependents or employment in the national interest. 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. IV). There is thus no statutory scheme to permanently exempt certain individuals while only deferring service for others. Both deferments and exemptions accomplish the same congressional purpose, that of not inducting certain registrants at a particular time. We are consequently unable to distinguish this case from Oestereich. In both situations a draft registrant who was required by the -relevant law not to be inducted was in fact ordered to report for military service. In both cases the order for induction involved a “clear departure by the Board from its statutory mandate,” Oestereich, supra, at 238, and in both cases § 10 (b) (3) of the Act should not have been construed to require the registrants to submit to induction or risk criminal prosecution to test the legality of the induction order. The judgment below is reversed and the case remanded for further proceedings in conformity with this opinion. Reversed and remanded. This reclassification was undertaken pursuant to 32 CFR § 1642.12. Although this provision would appear to preclude judicial review by habeas corpus after the registrant submitted to induction, we have already construed the statute to allow such review. Oestereich v. Selective Service Bd., 393 U. S. 233, 235, 238 (1968). During the pendency of that appeal the Appeal Board upheld the reclassification and the local board then ordered Breen to report for induction. The induction order has been stayed pending decision in this case. The Act also provides that student deferment status may be lost under certain conditions. “A deferment granted to any person under [this provision] shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs.” 50 U. S. C. App. § 456 (h) (1) (1964 ed., Supp. IV). There is no contention raised here that Breen has lost his deferred status for any of these statutory reasons. The Act does allow the President to restrict student deferments on a finding that the needs of the Armed Forces require such action, 50 U. S. C. App. §456 (h)(1) (1964 ed., Supp. IV), but he has not made any such finding at this time. See Selective Service Act of 1948, §6(h), 62 Stat. 611, as amended. The regulations promulgated pursuant to this authority permitted student deferments in the discretion of the local boards with certain suggested guidelines. See 32 CFR, §§ 1622.25, 1622.25a (1967 ed.). H. R. Rep. No. 267, 90th Cong., 1st Sess., 25-26 (1967); H. R. Conf. Rep. No. 346, 90th Cong., 1st Sess., reprinted in U. S. Code Cong. & Admin. News, 90th Cong., 1st Sess., 1352, 1356-1359 (1967); 113 Cong. Rec. 14093, 14095, 16434 (1967). The suggestion that the fleeting reference to “delinquents” in § 6 (h) (1) of the Act, 50 U. S. C. App. § 456 (h) (1) (1964 ed., Supp. IV), authorizes delinquency inductions must be rejected for the reasons set forth in Oestereich, supra, at 236-237, and in Gutknecht v. United States, ante, at 302. This statutory directive is implemented by 32 CFR § 1631.7. See n. 4, supra. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.